ML20214A678
| ML20214A678 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/13/1986 |
| From: | Chandler L, Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20214A651 | List: |
| References | |
| CPA, NUDOCS 8611200189 | |
| Download: ML20214A678 (28) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA COMPANY, et M. )
)
(Comanche Peak Steam Electric )
Station, Unit 1) )
NRC STAFF BRIEF IN SUPPORT OF APPEAL FROM ATOMIC SAFETY AND LICENSING BOARD MEMORANDUM AND ORDER ADMITTING AMENDED CONTENTIONS l
l Geary S. Mizuno Counsel for NRC Staff Lawrence J. Chandler Special Litigation Counsel l
l November 13, 1986 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD %@ 17 P3:18 CFFI,:-
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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA
- COMPANY, et al. )
)
(Comanche Peak Steam Electric )
Station, Unit 1) )
NRC STAFF BRIEF IN SUPPORT OF APPEAL FROM ATOMIC SAFETY AND LICENSING BOARD MEMORANDUM AND ORDER ADMITTING AMENDED CONTENTIONS Geary S. Mizuno Counsel for NRC Staff Lawrence J. Chandler Special Litigation Counsel November 13, 1986
TABLE OF GNIENIS PAGE(S)
TABLE OF AUI1 mITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I. I NlEG)0CTICN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. NGGE1ND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. ISSUES W APPEAL...................................... 4 IV. ABGlF.1Nr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
- 1. The Licensing Board Erroneously Found i that 'Ihere h'as a Basis for Consolidated Intervenors' Claim that Applicants had an Intentional Policy of Violating NRC Requ i ranen t s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
- 2. 'Ihe Licensing Board Incorrectly Ach11tted Contention 2, hhich 01allenges the Adequacy of a Corrective Action Program Intended by Applicants to Provide Support for Issuance of an Operating License.............................. 14 V. G1CLUSI W............................................ 21 9
PAGE(S) blU.I?AR REWIRmY CDS?ISSICN Pf0nrmINGi Comnission Iouisiana Power and Light Co. (Waterford Stean Electric Station, Unit 3), CLI-86-1, 23 NRC 1 (1986)......................................... 10, 11 Bletro wlitan Edison Co. (Three Blile Island Station, Lhi t 1) , CLI-85-7, 21 NRC 1104, 1106 (1985) . . . . . . . . . . . . . 11 Texas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Lhit 1), CLI-86-15, 23 NRC (Septerber 10, 1986)........................ 2, 3 Washington Public Power Supply Systen (WPPSS Nuclear Power Project Nos. 1 and 2), CLI-82-29, 16 NilC 12 '.1 ( 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19, 20 Atanic Safety and Licensing Appeal Board Duke I%er Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 NRC 460, 467-68 (1982)..................... 11 Indiana and Michigan Electric Co., et al. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414, 4 2 0 ( 19 7 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IS, 20 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), AIAB-104, 6 ABC 17 9 , n . 2 ( 19 7 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
, Philadelphia Electric Co. (Limerick Generating Station, Uni t s 1 and 2) , AIAB-804, 21 NilC 5 87, 592, n. 6. . . . . . . . . . 10
- Public Service Co. of New Hanpshire (Seabrook Station, Units 1 and 2), ALAD-422, 6 NRC 33, 40-42 (1977)........ 11 Texas Utilities Electric Co., et al. (Cananche Peak Steam Electric Station, Unit 1) (July 2, 1986; unpublished order)...................................... 2 Texas Utilities Electric Co., et al. (Comanche Peak Stean Electric Station, Lhit 1) (Septauber 22, 1986; unpublished order)...................................... 3
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PAGE(S)
Texas Utilities Electric Co., et al. (Comanche Peak l Sten Electric Station, thit 1) (October 9,1986; f unpublished order)...................................... 2 thion Electric Co. (Callaway Plant, Ihit 1),
AIAB-74 0, 15 NRC 3 4 3 , 3 4 6 (19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . 7 Atomic Safety and Licensing Board Texas Utilities Electric Co., et al. (Camanche Peak Steam 1;lectric Station, thit 1) Special Prehearing Conference Memorandtzn and order (Concerning Parties and Contentions) (May 2, 1986; unpublished order)....... 1, 2 EDCULATIm3 10 C.F.R. 5 2.714............................................ 14 10 C.F.R. 5 7.714(a)(1)...................................... 5 10 C.F.R. 5 2.714a........................................... 1, 2 Federal Proceedings SEC v. Chenerv Corp., 318 U.S. 80, 94 (1943)................. 11
November 13, 1986
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SATETY AND LICENSING APPEAL BOARD In the Matter of )
)
TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA COMPANY, et al. )
)
(Comanche Peak Steam Electric )
Station, Unit 1) )
NRC STAFF BRIEF IN SUPPORT OF APPEAL FROM ATOMIC SAFETY AND LICENSING BOARD fjEMORANDUf1 AND ORDER ADMITTING AffENDED CONTENTIONS
- 1. INTRODUCTION On October 30, 1986, II the Atomic Safety and Licensing Board (Licensing Board) issued a Memorandum and Order (Motion to Admit New Cententions or for Reconsideration) which admitted an " Amended" Conten-tion 2 submitted by Consolidated Intervenors CASE and Meddie Gregory. 2_/ Pursuant to 10 C.F.R. 5 2.714a, the NRC Staff has filed a Notice of Appeal and submits this brief in support thereof.
Previously, on May 2, 1986, the Licensing Board admitted a single contention, CASE Contention 6/ Gregory Contention 1. Admission of that contention was appealed by both the Staff and Applicants, pursuant to 1/ This Memorandum and Order, which was served on the Staff on October 31, 1986, was subsecuently corrected and supplemented by the Licensing Board's October 31, 1986 Memorandum and Order (Errors in Yesterday's Order), served on November 3,1986.
2/ The Licensing Board's May 2, 1986 Special Prehearing Conference Memorandum and Order admitted CASE and Meddle Gregory as consolidated intervenors in this proceeding.
10 C.F.R. I 2."14a, and is awaiting decision by this Appeal Board after briefs and argument.
Because the Licensing Board has, in connection with the subject Memorandum and Order, again erred in admitting a contention, the effect
. of which is to compel an unwarranted evidentiary proceeding, the Staff, for reasons discussed below, urges that the Licensing Board's ruling be reversed and the proceeding terminated.
II. BACKGROUND On May 2, 1986, the Licensing Board issued an Special Prehearing Conference Order admitting Consolidated Intervenors as parties, and a single consolidated contention. Both the Applicants and the Staff appealed the Licensing Board's order. After the filing of briefs and oral argument , the Appeal Board certified the following question to the Commission:
Is the admitted CASE /Meddie Gregory contention
. . . foreclosed as a matter of law by Washington Public Power Supply System _ (WPPSS Nuclear Power Project Nos. I and 2), CLI-82-29, 16 NRC 1221, 1230-31 (1982)[?]
Texas Utilities Electric Co. , et al. (Comanche Peak Steam Electric Station, Unit 1) (July 2,1986; unpublished order).
On September 19, 1986, the Commission issued a Memorandum and Order in which the Commission gave its answer and additional guidance regarding the question certified to it by the Appeal Board. Texas Utilities Electric Co. , et al. (Comanche Peak Steam Electric Station ,
Unit 1), CLI-86-15, 23 NRC . The Commission indicated that holders of construction permits may demonstrate good cause for an extension in two ways: by showing that there was good cause for the past delay in
m plant completion, or by shovring that at present there is good cause to allow more time for plant completion. CLI-86-15, slip y o, at 5-6.
Ilowever, the Commission vrent on to hold that:
there was policy if a corporate to speed construction by violating NRC requirements, and that policy was discarded and repudiated by the permittee , any delays arising from the need to take corrective action would be delays for good cause.
Id. at 8-9. Thereafter, the Appeal Board provided an opportunity for the parties to submit their comments on the Commission's decision. See Texcs Utilities Electric Co. , et al. (Comanche Peale Steam Electric Station, Unit 1) (September 22, 1986) (unpublished order). All parties filed briefs providing comments on the Commission's decision. E Before the Appeal Board ruled on the Applicants' and Staff's pending appeal, Consolidated Intervenors filed a Motien to Admit Amended I
Contentions or, In the Alternative, for Reconsideration of Certain Previously Denied Contentions (September 30,1986) (Motion). I In that Motion , the Consolidated Intervenors asked that they be permitted to modify the one contention that had been admitted by the Licensing Board.
Attached to their Motion were " Amended Contentions" 1 and 2. Both the 3/ Permittees' Memorandum in Response to the Appeal Board Order of
! September 22, 1986 (September 26, 1986); NRC Staff Comments on CL1-P6-15 (September 30, 1986); Consolidated Intervenors' Comments on CLI-86-15 (October 7,1986).
f/ The Appeal Board has subsequently indicated that it will reserve judgement on the Appliennts' and Staff's appeals until the Licensing Board has ruled on the Consolidated Intervenors' Motion to amend the admitted contention. Texas Utilities Electric Co., et al.
(Comanche Peak Steam Electric Station , Unit 1) (October 9, -19BT; unpublished order).
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Applicahts and the Staff filed briefs opposing the late amendment of the existing contention. 5,/ On October 30, 1986, the Licensing Board issued a Memorandum and Order (Motion to Admit New Contentions or for Reconsideration) (" October 30, 1986 Order"), which granted in part Consolidated Intervenors' Motion and admitted Amended Contention 2.
The next day the Licensingr Moard issued an additional order correcting and supplementing the October 30, 1986 Order by, inter alia, recounting the bases proffered by the Consolidated Intervenors in support of Amended Contention 2 in an Appendix A. 6,/
III. ISSUES ON APPEAL The issues on which an appeal is taken by the Staff are:
Issue 1 Whether the Licensing Board correctly found that there was a basis for Consolidated Intervenors' claim that Applicants had an intentional policy of
! violating NRC requirements.
i Issue 2 Whether the Licensing Board correctly admitted a contention challenging the ad. quacy of a corrective i action program intended by Applicants to provide
! support for issuance of an operating license.
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-5/ Permittees' Response to Consolidated Intervenors' Motion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions (October 10, 1986); NRC Staff Response in Opposition to CASE's Motion for Admission of Amended Contention (October 15, 1986).
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-6/ After the Licensing Board admitted Amended Contention 2, the Consolidated Intervenors filed with the Appeal Board a Motion to
, Dismiss Pending Appeal as Moot and/or for Lack of Jurisdiction and i to Immediately Dissolve Order Staying Discovery (October 31, 1986).
I The Staff has not yet responded to this latest motion.
.. -_ -_----_--.-- - -.. _- ---- ~ . -- __ _-. - - -- --.
5-IV. ARGUMENT Amended Contention 2 asserts that:
The delay in the construction of Unit I was caused by Applicants' intentional conduct, which had no valid purpose and was the result of corporate policies which have not been discarded or repudi-ated by Applicants.
A multi-part statement of basis was provided in support of this contention.
The Licensing Board erred in two respects b when it admitted this contention : (1) the Licensing Board incorrectly found that Consolidated Intervenors provided an acceptable basin for their claim that Applicants adopted a policy of violating NRC requirements; and (2) the Licensing Board incorrectly admitted a contention that challenges the adequacy of the Applicant s' corrective action program. These arguments will be discussed separately below.
- 1. The Licensing Board Erroneously Found that There Was a Basis for Consolidated Intervenors' Claim that Applicants had an Intentional Policy of Violating NRC Requirements The statement of basis provided by the Consolidated Intervenors for their claim that Applicants had a corporate policy to violate NRC require-ments is essenticity the same as that originally submitted in support of consolidated CASE Contention 6/ Gregory Contention 1 previously admitted
~7/ In addition, as argued by the Staff, a balancing of the five factors under 10 C.F.R. 5 2.714(a)(1) with respect to the admission of this l late contention weighs against its admission. See NRC Staff Response in Opposition to CASE's Motion for Admission of Amended Contention (October 15, 1986) at 2-7.
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1 by L! censing Board. The asserted basis consists of a recitation that there are deficiencies in the design and the QA/QC program at Comanche Peak, together with a claim that the Applicants " deliberately ignored" these problems. The Licensing Board found that this was adequate because, "Given the stated bases . . . plus our knowledge of additional information that has been made known to us, we do not yet know the seriousness of this pattern of deficiencies or the extent to which it represents intentional conduct of Applicants." October 30, 1986 Order at 8 (emphasis added). Nothing in the statement of basis provided by Consolidated Intervenors, or in the documents referenced in Appendix B to CASE's Request for Imposition of Fine, Suspension of Construction Activities, and IIearing on Application to Renew Construction Permit (January 31, 1986), provides a reasonable basis for the assertion that Applicants had a deliberate (intentional) policy to violate NRC require-ments, or even more significantly, that they continue to have such a policy.
A perusal of the documents referred to by CASE discloses nothing that shows that the Applicants deliberately engaged in a policy of violating NRC regulations. No such policy or management direction is set forth in any of the documents referred to in Appendix B. None of the 1
memoranda , letters , internal reports , audits , minutes of meetings, or notes identified in Appendix B set out, refer to, discuss, or otherwise make reference to any management direction, policy or decision to violate NRC requirements under any circumstance. Nor do the outside (i . e . ,
third party or independent) audits , reports or inspections identified in Appendix B disclose any finding or suspicion that there was a policy or l
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directioil to violate NRC requirements. The referenced documents merely indicate that design , construction and QA/QC deficiencies have been identified over time at Comanche Peak. 8I The existence of such problems, without more, simply does not raise a reasonable inference that those problems were the result of a deliberate policy to violate applicable requirements. As the Appen't Board recognized:
In any project even remotely involving in magni-tude and complexity ; the erection of a nue! ear power plant, there will inevitably be some construction defects tied to quality assurance lapses. It would therefore be totally unreasonable to hinge the grant of an NRC operating license upon a demonstration of error-free construction.
Nor is such a result mandated by the Atomic Energy Act of 1954 . . . or by the Commission's regulations. All thov require is simply a finding of rasonable assurance that, as built, the. facility can and will be operated without endangering the public bealth and safety.
Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 346 (1983). The Staff submits that a similar approach must be utilized in determining whether there is a reasonable basis for a claim that a licensee had a policy of violating the Commission's regulations. Under this approach, it is clear that the Consolidated Intervenors' litany of design, construction and QA deficiencies that were spread out over the course of the design and construction of the facility, without more, does not establish a pattern or course of action that would reasonably suggest the existence of a policy to deliberately violate NRC requirements.
-8/ The Staff notes that the problems which were identified and
! discussed in the documents referenced in Appendir B occurred prior g the Applicants' decision to develop and implement their corrective (FCOTNOTE CONTINUED ON NEXT PAGE)
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Consolidated Intervenors suggest that such a pattern can be inferred because, in their view, the Applicants ignored " consistent criticism" of their QA/QC program and of the design of the facility, and " deliberately refused to take positive ection to reform their QA/QC Program in the face of consistent criticism." For purposes of argument, the Staff would concede that if there were some basis for suggesting that Applicants deliberately ignored without contemporaneous explanation E problems brought to their attention, it would be reasonable to believe that there was a policy to violate NPC requirements. However, such a basis has not been presented by the Consolidated Intervenors. None of the documents in Appendix B state that Applicants had deliberately ignored or disregarded criticism. b The referenced documents do show that (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) action program -- the CPRT. Therefore, these problems cannot be cited as providing support for Consolidated Irtervenors' assertion that such problems are still occurring at Comanche Peak.
g/ In the Staff's view, it is important, for the purpose of assessing whether it is reasonable to infer that a deliberate policy to violate NRC requirements existed , whether Applicants had a reasonable response or explanation for their actions (or lack of further action) to a problem at the time that the problem was first made known to them. For if Applicants did provide, at the time a problem was identified, a reasoned explanation as to why the problem was not, in fact , a deficiency or that further action, other than correcting the immediate problem was not necessary, this negates the inference that Applicants were not mindful of the need to comply with NRC require-ments. Obviously, an applicant who had a policy to violate NRC's requirements would not be concerned with timely developing a reasoned explanation or response to the identified problem.
10/ It should be recognized that some of the criticisms contained in the documents referenced in Appendix B probably were not made known to Applicants at the time of their creation, for example, the internal l NRC trend analyses. !
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Applicants disagreed with some of the criticism contained in the documents and decided that no corrective action was necessary. In hindsight, those decisions may have proven to be incorrect. However, the important point is that Applicants acknowledged the criticism, considered its validity, and provided a substantive response setting forth why the Applicants agreed or disagreed with the criticism. Such action is inconsistent with the notion that Applicants " ignored" criticism. Nor do the Consolidated Intervenors allege that the Applicants' responses where they disagreed with the findings were a sham and did not constitute good-faith disagreement with the criticism contained in the referenced documents.
Accordingly, while there are areas of disagreement between the Staff and the Applicants as well as between Applicants and other third parties who have provided critical evaluations of various design , construction and QA/QC activities for Comanche Peak, the Staff does not consider the references in Appendix B , which merely document the existence of such disagreements, to be a sufficient basis for the claim that there was a
" pattern" of ignoring criticism of the QA/QC program or of design by Applicants, let alone a deliberate course of conduct to do so.
The Licensing Board, to be sure, 'ourai that the purported bases provided by Consolidated Intervenors "are more than adequate" and "alone are sufficient" to support the claim that a policy existed to violate NRC requirements. See October 30, 1986 Order, p. 8. However, the Licensing Board did not indicate what in the statement of basis for this amended contention supported the claim that an Applicant policy to violate NRC requirements existed. In fact, it is apparent that the Licensing Board was relying upon information known to it from the operating license
proceeding in an attempt to remedy the deficiencies in the Consolidated Intervenors' statement of basis. II -
It was not correct for the Licensing Board to go beyond the basis provided by the Consolidated intervenors,
. In order to remedy the substantive deficiencies of their motion. Cf.
Philadelphia Electric Co. (Limerick Generating Station , Units 1 and 2),
ALAB-804, 21 NRC 587, 592, n.6; see also Louisiana Power and Light Co.
(Unterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1 (1986).
Even if we accept, for purposes of argument, the propriety of the Licensing Board's reliance on information known to it from the separate operating license proceeding, the fact of the matter is that the Licensing Board's October 30, 1986 Order is bereft of any reference to specific facts upon which one could directly find , or reasonably infer, the existence of a policy to violate NRC requirements. The most that the Licensing Board could say was that there were " problems with design documents," that the Staff "found many problems relating to the quality of construction ," and that the Applicants have " corroborated Staff findings in the quality control audit program." October 30,1986 Order,
- p. 8. h' hut is missing is any indicia of a policy to violate NRC requirements. Yet despite the Licensing Board's acknowledgment that it "do[es] not yet know the seriousness of this pattern of deficiencies or
'- the extent to which it represents intentional conduct of Applicants,"
i October 30, 198C Order at 8, the Licensir.g Board concluded that there was " adequate basis for further inquiry, which can occur during the
-11/ See , e.g. , October 30, 1986 Order, p. 8, where the Licensing Board 15dicated that the Licensing Board is interpreting the basis provided "in IIght of [the operating license proceeding]."
discoveiy process." Id. at 9. To permit discovery in the hopes of ferreting out information that supports an otherwise inadequate statement of basis is contrary to settled precedent. Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 467-468 (1982);
c f. Louisiana Power and Light Co. (Waterford Steam Electric Station ,
Unit 3), CLI-86-1, 23 NRC 1 (1986); Metropolitan Edison Co. (Three Mile Island Nuclear Station , Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985).
The Licensing Board concludes that there exists "a pattern of deficiencies" that somehow lends support to its ruling insofar as it concerns the question of whether a " policy" to deliberately violate NRC regulations existed. However, the Licensing Board failed to explain the basis for this conclusion. Nor does the Licensing Board even describe what the " pattern" is, or how such a " pattern" would be indicative of a policy to deliberately violate NRC requirements. At minimum , the Licensing Board should have described what criteria or indicia formed the conceptual basis for the pattern, discussed how such a pattern could logically be grounds for finding a policy to violate NRC requirements, and identified those deficiencies or actions of the Applicants which the Licensing Board considered to be part of the found " pattern". Its failure to do so violated the well-accepted principle of administrative law that "the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained." SEC v. Chenery Corp. , 318 U.S.
80, 94 (1943), cited g Public Service Co. of New Hampshire (Seabrook Station , Units 1 and 2), ALAB-422, 6 NRC 33, 40-42 (1977);
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC 179, n.2 (1973).
The Staff submits that there is ample information known to the Licensing Board from the operating license proceeding which undermines the Consolidated Intervenors' claim that Applicants deliberately ignored criticisms of the design and QA/QC at Comanche Peak; if it is acceptable to rely on allegedly negative information in the record of the operating license proceeding, fairness dictates that contrary information in that record also be accounted for. Turning first to design, the record in the operating license proceeding shows that the design deficiencies were first brought to light by Mr. Mark Walsh, a former pipe support technician at Comanche Peak. The record also shows that when Mr. Walsh first raised his concerns, the Applicants presented to Mr. Walsh the technical grounds for their disagreement with his position. Only after Mr. Walsh took issue with the Applicants' technical explanation did he then raise his concerns in the operating license proceeding. The record also shows that es additional problems were raised in the operating license hearing by Mr. Walsh and Mr. Jack Doyle , a former pipe support analyst at Comanche Peak, Applicants provided testimony, and later affidavits setting forth technical grounds for disagreeing with positions of these two i
individuals. See e.g., Tr. 3074-3341, 4768-4837, 5183-5305, 6017-6092.
While it is true that Applicants failed to prevail on these matters on the
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basis of the technical grounds that they asserted (and therefore, at most, it might be suggested that they lack competence in pipe support engineering), it is misleading for Consolidated Intervenors to assert that Applicants made no response to (or ignored) design problems as they were brought to their attention.
Ttirning to construction and QA deficiencies, it is clear that the same situation exists here as in the area of design -- Applicants did respond to the specific and more generic concerns in their QA/QC program. For example, the Consolidated Intervenors refer to the findings of the NRC's CAT (" Construction Assessment Team") Report. What both Consolidated Intervenors and the Licensing Board fail to discuss is that the Applicants had responded to the findings of the CAT and disagreed with many of the findings of the CAT. The Staff's findings in the CAT Report , the Applicants' response, and the adequacy of the Applicants' response were explored in great detail over several days of hearings in the operating license proceeding. See Tr. 6270-8618. In other words, Consolidated Intervenors have carefully presented (and the Licensing Board has relied upon) extracts of information from the operating license ,
proceeding while ignoring other record information showing that there was an response by Applicants at the time the deficiency was identified. For virtually every report, audit or finding referenced in Appendix B, there is information showing Applicant acknowledgment and response to the criticisms in those reports. More to the point, these reports and audits were , with the exception of the Staff's SSERs on the NRC's Technical Review Team (TRT) findings, a subject of litigation. Given the context in which nearly every document relied upon by Consolidated Intervenors was a subject of litigation in the operating license proceeding, and where evidence was presented showing some contemporaneous reaction by Applicants to each of the findings or observations which were brought to their attention, the Staff submits that a contention which claims that there was an absence of any Applicant response is patently without basis,
and should not be admitted. Where there is record information that Applicants responded to claims of design and QA/QC programmatic deficiencies, assertions of purported basis which are so substantially refuted by contrary information should not be found to constitute on adequate basis for purposes of natisfying 10 C.F.R. I 2.714.
Since there was no basis provided by Consolidated Intervenors (or by the Licensing Board) which either directly shows or reasonably suggests that Applicants had a policy of violating NRC requirements, to the extent this was an element of the Licensing Board's ruling, its decision admitting Amended Contention 2 was in error.
- 2. The Licensing Board Incorrectly Admitted Contention 2, Which Challenges the Adequacy of a Corrective Action ProFram Intended by Applicants to Provide Support for Issuance of an Operating License The essence of Amended Contention 2 is that improper corporate policies have not been discarded or repudiated by Applicants. The asserted basis for this claim is contained in Parts B and C b of the statement of basis. Part B of the statement of basis argues that there has been no repudiation because of the " absence of any statements of repudiation and of any stated intend to discard any corporate policy."
Part C argues that repudiation cannot be found because "the people
-12/ Part A of the provided statement of basis attempts to lay out a predicate for the allegation of a past policy on the part of Applicants to violate NRC requirements and has been addressed above. Part D provides no support for any of the claims presented in Amended Contention 2, but rather merely sets forth Consolidated Intervenors' views as to what elements a corrective action program should contain.
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running the plant now are most of the same persons who made the original decision to ignore the [NRC's] legal requirements," and because of the fact that there are problemn with the Applicants' corrective action initiatives. The Licensing Board held that because "there is a factual dispute between Intervenors and Applicants about the extent to which present conduct does constitute repudiation and about the extent to which management changes have ameliorated prior management problems," the contention is admissible. October 30, 1986 Order, p. 9. According to the Licensing Board, this follows from the Commission's ruling in CLI-86-15 that if " intentional delay is demonstrated", an applicant must
" demonstrate that they have discarded and repudiated their intentional misconduct. " Id. While the Licensing Board appears to have correctly rejected Consolidated Intervenors' argument in Part B of the statement of basis, -- it erroneously found that Consolidated Intervenors' allegations I
regarding the nature of the management personnel at Comanche Peak and the inadequacies of the Applicants' corrective action program were a sufficient basis to permit admission of Amended Contention 2.
In the Staff's view, the Licensing Board erred when it found that the Censolidated Intervenors' statement of basis presented enough
-13/ The Licensing Board acknowledged in its Order that Applicants had not explicitly " admitted the intentional conduct that Intervenors allege. " October 30, 1986 Order, p. 9. The Licensing Board then went on to say that there remains a dispute regarding the " extent to which present conduct constitutes repudiation. " Id. Thus, the Licensing Board must have rejected Consolidated Intervenors' argu-ments that an explicit statement of repudiation or rejection of past policies is a necessary condition for finding repudiation. The Licensing Board was entirely correct on this matter, for the reasons set forth in the NRC Staff Response to CASE's Motion for Admission of Amended Contentions (October 15, 1986).
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information for it to conclude that there was a " factual dispute" regarding the extent of management changes. Consolidated Intervenors' statement of basis referred to Applicants' September 16, 1986 Supplementation to
- Answers to CASE Interrogatories to Applicants (" Applicants' Answer")
Discovery in support of their argument on management. However, Applicants' Discovery Answer is not clear on this point, contrary to Consolidated Intervenors' representations. Interrogatory A-3 (which appears to be the only relevant interrogatory) asks Applicants to name "cach individual who is in the second and third tiers under the manage-ment tiers given on Mr. Counsil's charts." In response, the Applicants provided a listing of approximately 140 individuals. No information was provided , as none was requested , as to when these individuals first became employed at the Comanche Peak project, and whether they had any management role at that time, particularly insofar as policymaking is concerned. Thus, it is not possible to determine from the Applicants' answer to the interrogatory whether or not these individuals could at all be partially responsible for policy development and implementation at Comanche Peak at the time that the alleged policy of violating NRC requirements was to have been promulgated and followed. The Staff also points out that these individuals are "second and third tier" management;
- Consolidated Intervenors do not explain whether these individuals now have any role in policymaking under the Applicants' current management organization. In sum, the Staff considers the basis provided by
Consolli!ated Intervenors to be entirely deficient in this regard. $
Moreover, it is impossible to conceive how the Licensing Board could have been oie to tell whether the majority (or even a plurality) of individuals listed in Applicants' response were in management positions at the Comanche Peak site prior to late 1984 (the time period when the CPRT was initiated). Under such circumstances, the Staff submits that the Licensing Board was clearly in error when it determined that Consolidated Intcrvenors had provided an adequate basis for their claim that the same 14/ The Staff regards this as but another example of Consolidated Intervenors' selective presentation of information. Consolidated Intervenors do not dispute that substantial changes have been made in the Applicants' management organizational structure , and that many new individuals from outside Applicants have been appointed at the executive management level, as well as at lower management levels. Their failure to recognize the impact of these changes and appropriately tailor their statement of basis must be considered to be an unfounded representation of the facts. Nor is this an isolated instance. For example, Censolidated Intervenors received in discovery a April 30, 1986 Memorandum from Jim McGaughy (consult-ant to Brazos Electric Power Cooperative, one of the minority appli-cants for Comanche Peak) to Erazos (incidentally, this memorandum was provided to the Licensing Board by the Intervenor CASE in the operating license proceeding). In this memorandum Mr. McGaughy stated, "[Mr. Counsil] feels that most of the problems lead back to fradequate management. Because of inadequate management, he has been bringing in experienced people in all the management positions below him . . . . His commission by TU management was to make Texas Utilities number one in the nuclear business and to do that he has been replacing the old management with experienced manage-ment . " It is clear that this document is so completely at odds with Consolidated Intervenors' position on lack of management changes that it renders entirely unsubstantiated the Consolidated Intervenors' assertions on lack of management changes.
l l
l l
management responsible for problems at Comanche Peak were still in charge. E More significantly, the Licensing Board erred in its determination that allegations of inadequacies in a corrective action program constitute an adequate basis for a claim of lack of permittee rcpudiation. Part C (as well as D) of the statement of basis for this contention makes it abundantly clear that Consolidated Intervenors are actually challenging the adequacy of the Applicants' corrective action program E (as opposed to the question of whether repudiation has occurred). They do not, for
-15/ As discussed above, the Staff believes that it was improper for the Licensing Board to go beyond the statement of basis provided by the Consolidated Intervenors and rely on unidentified information known to it from the Comanche Peak operating license proceeding, in an attempt to correct deficiencies in or otherwise supplement the basis provided by Consolidated Intervenors. A gain , conceding the propriety of that practice, it is inconceivable to the Staff how the Licensing Board could have ignored clear and substantial information l
that so contradicted the factual assertions on lack of management changes so as to render them entirely inadequate as a basis for the amended contention. This contradictory information includes the changes in management organization, the appointment of numerous new individuals at all levels of management, end admissions by the i
Applicants' management.
l l ~-16/ That the true purpose of Consolidated Intervenors is to engage in a substantive challenge to the adequacy of the Applicants' corrective action initiatives is borne out not just by the words of the statement
, of basis. The Stcff also draws the Appeal Board's attention to the I
sequence of events regarding Consolidated Intervenors' use of these words. As noted in the textual discussion above, Parts C and D of l this statement of basis were drawn nearly word-for-word from CASE l -
Contention 7 and Meddie Gregory Contention 2. This in turn represents a condensation of the points made in CASE's Suggested Construction Reverification Program (CRP), Appendix A to CASE's Motion for Establishment of an Evidentiary Standard and Request for Board Directed Independent Inspection (February 4, 1985) (filed in the Comanche Peak operating license proceeding). It is clear that Consolidated Intervenors are interested only in challenging the adequacy of the corrective action program.
l
Instance, dispute that Applicants have made numerous changes in Appli-cants' mansgement b and that the CPRT is the corrective action program that Applicants intend to assure the compliance of the Comanche Peak facility with the Commission's regulations. Nor do Consolidated Inter-venors suggest that the CPRT was undertaken as a subterfuge to gain extension of the Unit 1 construction permit (nor can they so argue since, as discussed in note 8 above, the Applicants' commitment in late 1984 to undertake the CPRT substantially predated the early 19EE point in time that Applicants first became cognizant of the need to extend the Unit 1 construction permit). The adequacy of the corrective action program is material only to the public health and safety issues of an operating license proceeding, and contentions raising such issues may not be litigated in a construction permit extension proceeding where an operating license proceeding is pending in which the issue can be raised. WPPSS, CLI-82-79, 16 NRC 1227, citing with approval Indiana and Michigan Electric Cc. , et al. (Donald C. Cook Nuclear Plant, Units 1 and 2),
ALAB-129, 6 AEC 414, 420 (1973). The purpose of this limitation is to prohibit the " periodic relitigation of health , safety or environmental cuestions in agency adjudications between the time e construction permit is granted and the time a facility is authorized to operate. WPPSS, 16 NRC at 1228.
The Licensing Board's decision admitting the amended contention makes it a virtual certainty that there will be duplicative hearings on the subject of the adequacy of Applicants' corrective action program. The 17/ See also note 15 above.
l Licensifig Board has all-but-concluded that CPRT Program adequacy will i l
be litigated in connection with Amended Contention 2, as evidenced by its '
suggestions that "the seriousness of this pattern of deficiencies" is open to further pursuit in discovery, end that a hearing in the CP extension proceeding is necessary to resolve a " factual dispute ... about the extent to which present conduct does constitute repudiation and about the
" 1986 Order, extent [of] management changes .... October 31, pp. 8-9. However, the current subject of the operating license proceed-ing is also the adequacy of CPRT Program. The Licensing Board has elready adopted an approach and schedule for conducting the litigation on the CPRT. One of the Consolidated Intervenors, CASE, has submitted .
extensive discovery requests in anticipation of hearings on the issue of CPRT Program Plan adequacy. The Staff and Applicants are currently recponding to CASE's requests. CASE has also filed numerous requests for depositions, which will likely not commence until December 1986. The Staff submits that the issue of the adequacy of Applicants' corrective action initiatives is already the subject of litigation in the companion operating license proceeding, in which one of the Consolidated Inter-
- venors is participating. It would be duplicative and entirely wasteful of the agency's resources to litigate the same issue in this construction permit extension proceeding. There is no compelling reason why the issue must be litigated in this construction permit amendment proceeding, especially where the issue has no material connection to the operative I
question of repudiation. Consequently, the Licensing Board should have complied with the law set out in D.C. Cook and WPPSS, and rejected the l
amended contention.
V. CONCLUSION Based on the foregoing, the Staff submits that Consolidated Inter-venors have failed to provide a reasonably specific basis for their contention that Applicants had a deliberate and intentional policy to violate NRC requirements in the construction of Comanche Peak Unit 1.
Accordingly, admitting the deficient Amended Contention 2 was an error by the Licensing Board. The Board also erred when it found that Consolidated Intervenors presented a sufficient basis for their claim that Applicants had not repudiated and discarded any arguably existing past policy of violating NRC requirements. The Licensing Board's error in this regard is particularly egregious, given the corrective actions being undertaken by the Applicants to resolve the concerns with the design and construction of Comanche Peak Units 1 and 2. Finally , the Licensing Board erred when it admitted a contention which challenges the adequacy of those corrective actions being undertaken by the Applicants. For these reasons, the Licensing Board's October 30, 1986 Order, as corrected and supplemented by the October 31, 1986 Order, should be reversed and the proceeding terminated.
Respectfully submitted,
] r .
t
, ry S Mizuno for NRC Staff ll Il $
f 'La rence{ ./ fiandler Alf4lY Special Litigation Counsel Dated at Bethesda, Maryland this 13th day of November,1986
. DOLKETEP UNITED STATES OF AMERICA N NUCLEAR REGULATORY COMMISSION F
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BO Ddi NOV 17 P3 :18 CFFIC: ,
In the Matter of ) 00CK:gg . .. ,,
)
TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA
- d l
COMPANY, et al. )
)
(Comanche Peak Steam Electric )
Station, Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF NOTICE OF APPEAL FROM ATOMIC SAFETY AND LICEFFING BOARD MEMORANDITM AND ORDER ADMITTING AMENDED CONTEN'rION" and "NRC STAFF BRIEF IN i SUPPORT OF APPEAL FROM ATOMIC SAFETY AND LICENSING BOARD MEMORANDIW AND ORDER ADMITTING AMENDED CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United Stntes mail, first class, pr deposit in the Nuclear Regulatory Commission's internal mail system (*), or by hand delivery ("), this 13th day of November,1986:
Peter B. Bloch, Esq. , Chairman
- Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Corrnission Dallas, TX 75224 Washington, DC 20555 Nicholas S. Reynolds, Esq.
Dr. Kenneth A. McCollom William A. Horin, Esq.
Administrative Judge Bishop, Liberman, Cook,
- 1107 West Knapp Purcell & Reynolds Stillwater, OK 74075 1200 17th Street, N.W.
I Washington, DC 20036 Elizabeth B. Johnson Administrative Judge Roy P. Lessy, Jr. , Esq.
Oak Ridge National Laboratory Wright & Talisman, P.C.
P.O. Box X, Building 3500 Suite 600 Oak Ridge, TN 37830 1050 17th Street, N.W.
1 Washington, DC 20036-5566 i
t
Dr. Wal'ter H. Jordan Administrative Judge Mr. W. G. Counsil 881 W. Outer Drive Executive Vice President Oak Ridge, TN 37830 Texas Utilities Generating Company 400 North Olive Street, L.B. 81 Billie Pirner Garde Dallas, TX 75201 Trial Lawyers for Public Justice 3424 North Marcos Lane Appleton, WI 54911 Robert D. Pfartin William L. Brown, Esq.
U.S. Nuclear Regulatory Commission U.S. NucIcar Regulatory Commission 611 Ryan Plaza Drive, Suite 1000 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Arlington, TX 76011 Robert A. Wooldridge, Esq. Mr. Harry Phillips Worsham, Forsythe, Samples Resident Inspector / Comanche Peak
& Wooldridge Steam Electric Station 2001 Bryan Tower, Suite 2500 c/o U.S. Nuclear Regulatory Commission Dallas, TX 75201 P.O. Box 38 Glen Rose, TX 76043 Anthony Z. Roisman, Esq.
Trial Lawyers for Public Justice Thomas G. Dignan, Esq.
2000 P Street, N.W., Suite 611 Ropes & Gray Washington, DC 20036 225 Franlin Street Boston, MA 02110 William H. Burchette, Esq.
Mark D. Nozette, Esq. Atomic Safety and Licensing Appeal lieron, Burchette, Ruckert Board Panel **
a Rothwell U.S. Nuclear Regulatory Commission Suite 700 Washington, DC 20555 1025 Thomas Jefferson Street, N.W.
Washington, DC 20007 Docketing and Service Section*
Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Robert A. Jablon, Esq.
Spiegel & McDicrmid
- 1350 New York Avenue, N.W.
Washington, DC 20005-4798
/D '
C ns NR Str
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