ML20091G251

Licensee Answer to Motion to Reopen Record by M Dow & SL Dow.* Requests That Petitioners Motion Be Denied for Listed Reasons.W/Certificate of Svc & Notices of Appearance

ML20091G251
Person / Time
Site:	Comanche Peak
Issue date:	12/02/1991
From:	Frantz S NEWMAN & HOLTZINGER, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	NRC COMMISSION (OCM)
References
CON-#491-12389 ALAB-462, ALAB-599, ALAB-778, ALAB-816, ALAB-886, CLI-75-04, CLI-75-4, CLI-80-34, CLI-86-01, CLI-86-1, CLI-88-12, CLI-89-06, CLI-89-6, CPA, LBP-83-81, LBP-86-09, LBP-86-9, LBP-88-18A, LBP-88-18B, OL, NUDOCS 9112110078
Download: ML20091G251 (46)

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PROD. a UTIL FAC 8 .a CXKEiED

, USE C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l BEFORE THE COMMISSlQJ{ ,v pr4 (nj _ ar 7 gi.[ \ ;!

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In the Matter of )

)

TEXAS UTILITIES ELECTRIC )

COMPANY ) Docket Nos. 50-445-CL

) 50-446-OL

)

(Comanche Peak Steam Elactric )

Station, Units 1 and 2) )

)

LICENSEE'S ANSWER TO THE NOTICN TO REOPEN THE RECORD BY MICKY DDW AND SANDRA LONG DQ11.

On November 20, 1991, 'ar. Micky Dow and Ms . Sandra Long Dow (the " Dows" or " Petitioners") filed a motion 1/ to reopen the record of the Comanche Peak licensing proceedings, alleging that (1) they have uncovered "new evidence" regarding the payment of " hush" money to "whistleblowers" not to testify before this Board; and (2) Texas Utilities Electric Company ("TJ Electric" or " Licensee") made material false statements before the ASLB and before the Department of Labor (" DOL").

The Licensee hereby files its response in opposition to Petitioners' motion. For the reasons which follow, the Licensee respectfully requests that the Commission direct the motion to the Secretary with instructions to summarily dismiss.

1/ Notion to Reopen the Record (November 20, 1991) (" Motion").

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The remainder of this response is divided into the following three sections:

e

• Section I provides a summary of Licensee'n position.

• Section II provides backgrcund information related to the Petitioners' allegations, including a discussion of the disposition of past allegatior.s that were similar to those now being raised by Petitioners.

• Section III demonstrates why Petitioners' motion ir ceficient and should be summarily dismissed.

I.

SUMMARY

On February 27, 1978, the predecessor to TU Electric submitted an application for en Operating License ("OL") for Comanche Peak Steam Electric Station ("CPSES") Units 1 and 2. On July 13, 1988 after approximately nine years of litigation, the Atomic Safety and Licensing Board (the " Board" or the "ASLB")

dismissed the OL proceeding and the Construction Permit Amendment

("CPA") proceeding 2/ on the basis of a Joint Stipulation and Joint Motion for Dismirsal. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Units 1 and 2), Y.BP 2/ The CPA proceeding related to extension of the latest date of completion of construction in the construction permit for CPSES Unit 1.

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-3 IBA, 28 N.R.C. 101 (1988). Texas Utilities Electric Co. l (Comanche Peak Steam Electric Station, Unita 1 and 2), LBP IBB, 28 N.R.C. 103 (1988).

Following dismissal, several groups and individuals attempted to overturn the dismissal and reopen the proceeding based upon allegations similar to those now being raised by the Petitioners. These attempts were either withdrawn or were rejected by the Commission. Ece, e.g.., Texas Utilities Electric Cn. (Comancho Peak Steam Electric Station, Units 1 and 2), CLI-88-12, 28 N.R.C. 605 (1988) and CLI-89-06, 29 N.R.C. 348 (1989).

The Commission's refusal to reopen the CPSES proceedings was upheld by the courts. Een citizens for Fair utility _negulation v HEC, 898 F.2d 51 (5th Cir.), cert. denied, 111 S. Ct. 246 (1990).

On November 20, 1991, the Petitioners filed a motion to reopen the record of these proceedings, alleging that: (1) they have uncovered "new evidence" regarding the payment of

" hush" money to "whistleblowers" not to testify before this Board; and (2) TU Electric made material false statements before the ASLB and before the DOL. Petitioners' motion to reopen is virtually identical to the one submitted (and withdrawn) by Mr.

Lon Burnam on July 13, 1989 and is_the latest in a series of efforts to circumvent and undermine the Board's dismissal of the proceedings.

The motion should be denied for the following reasons:

First, once a proceeding is fully litigated and becomes final, consideration of a motion to reopen is no longer '

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appropriate. The Board concluded hearings in the CPA and OL proceedings for CPSES in July 1988. The OL for CPSES Unit I was issued in February 1990. Thus, there is no longer a pending proceeding which is subject to reopening under 10 C.F.R. S 2.734.

Second, Petitioners have no right to request that the record be reopened since they have never been a party to the proceedings. The rights of a non-pa ty, such as Petitioners, are

, restricted to a limited appearance at hearings or a prehearing l conference. A non-party has no other " rights" to participate in

-a hearing before the NRC.

Third, Petitioners have not demonstrated a right to intervene. Petitioners implicitly acknowledge that the motion itself is insufficient to constitute a petition to intervene since they state that they will not provide the basis for their intervention until 45 days from now. At most, the motion is a statement of an intent to seek intervention within 45 days. Even if the motion were construed as a petition to intervene, it is deficient because it fails tos (1) demonstrate standing and proffer at least one valid contention; and (2) address any of the i

five criteria governing late-filed intervention under the i

Commission's regulations. To allow Petitioners to reopen these l

proceedings after nine years of litigation, a settlement between the parties, and the issuance of the OL-for CPSES Unit I would ,

j encourage potential intervenors to sit back and wait until a plant is operatin.J to intervene.

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Fourth, even if the deficiencies indicated above did not exist, Petitioners' motion would still not satisfy the Commission's requirements in 10 C.F.R. S 2,734 governing motions to reopen. In particular, Petitioners' motion does not indicate why any of the materials that it seeks to introduce into the records.(1) are timely raised; (2) have safety significance; or (3) would-have led the Licensing Board to deny the joint motion for dismissal or the issuance of the CPA or OL. Therefore, the motion must be denied for failure to satisfy the requirements of 10 C.F.R. $ 2.734(a).

Finally, Petitioners' cla, +hnt TU Electric committed perjury because different pipe support design groups used dif f erent design criteria. This claim is utterly witheat merit.

During the last eight years, others have raised allegations

-regarding the transfer of pipe support design packages among design organizations and the use of different design criteria or j approaches. These allegations have repeatedly been determined to have no saftty significance. Furthermore, the Petitioners have misinterpreted and mischaracterized TU Electric's statements.

l - The statements in question accurately reflected the process used I

at CPSES, and Petitioners' interpretation of these statements is i

clearly in error.

L II. BACKGRQHND This section is divided into the following three '

subsections: Section A discusses the history of events leading up ,

to the Board's dismissal of the CPA and OL proceedings for CPSES, i

and previous atto .s by individuals and organizations to undermine the Board's disinissal of the prococdings; Section B discusser reviews performed rij the NRC Staf f of the safety significance of previous allegations similar to those being raised by the Petitioners; Section C discusses the background of Petitioners, and previous allegations that they have made regarding tes car..struction and operation of CPSES.

A. !ilo mrv of Licensing _ Proceedings at cPsrs Allegations aimilar to those raised by Petitioners havo been submitted to the NRC in various contexts during the past eight years by other individuals and organizations. As discussed l colew, sa each caso, the NRC concluded that the allegations were baseless, or the allegations were withdrawn.

On Tebruary 27, 1978, the predecessor to TU Electric filed with the Commission an application for Operating Licenses for two pressurized water reactors, Comanche Peak Steam Electric Station, Units 1 and 2, in somervell County, Texas. Een 43 Fed.

Reg. 20,583 (19"/8). On February 5, 1979, the Commission published a notice of consideration of issuance of the facility Operating Licenses in the Federal Register and provided the opportunity for interested persons to intervene and request a hearing on the applicatinn. 44 Fed. Reg. 6995 (1979).

The Citizens Association for Sound Energy (" CASE"), the Citizens for Fair Utility Regulation ("CFUR"), and the Texas Association of Community Organizations for Reform Now/ West Texas Legal Services (" ACORN") filed timely petitions to intervene and l

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requests for hearing in accordance with 10 C.F.R. S *.i14. ) The State of Texas filed a timely petition to participate as an interested State, pursuant to 10 C.F.R. S 2.715(c). On Narch 15, I i

1979, the ASLB was established. The Board admitted CASE, CPUR l l

and ACORN as intervenors and the State of Texas as an interested l State. 3/ t.3nty-five contentions were original 3y admitted by the Board along with three " Board Questions." A/

ACORN withdrew from the OL proceeding in 1981, and CPUR withdrew from the OL proceeding in 1982. The Board dismissed or-withdrew all the contentions and Board Questions excepted for Contention 5. 5/

3/ Order Relative to Standing of Petitioners to Intervene, (June 27, 1979).

A/ Order Subsequent to the Prehearing Conference of April 30, 1980, (June 16, 1980).

5/ Contention 5 read as follows:

The applicants' failure to adhere to the quality assurance / quality control provision required by the construction permits for Comanche Peak, Units 1 and 2, and the requirements of Appendix B of 10 C.F.R. Part 50, and the construction practices employed, specifically in regard to concrete work, mortar blocks, steel, fracture toughness testing, expansion joints, placement of the reactor vessel for Unit 2, welding, inspection and testing, materials used, craft labor qualifications and working conditions (as they may affect QA/QC), and training and organization of OA/0C personnel, have raised'subotantial-questions as to the adequacy of the construction of the facility. As a result, the Commission cannot make the-findings required by 10 C.F.R. S 50.57(a) necessary for issuance of an operating license for Comanche Peak. (CFUR 4A-ACORN 14-CASE 19 Joint Contention).

Order Subsequent to the Prehearing Conference of April 30, 1980, at 11 (June 16, 1980).

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l Following extensive hearings on Contention 5, the ASLB issued a decision which concluded that there was doubt about the design quality of Comanche Peak. As a result, the Board requested that TU Electric submit a plan to provide confidence in the CPSES design. Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-81, 13 NRC 1410, 1452-56 (1983).

Subsequently, the remaining partier to the proceedings, TU Electric, CASE and the NRC Staff, were involved in resolving the remaining technical issues for the licensing of Comanche Peak. For its part, TU Electric instituted a third party review of CPSES through the Comanche Peak Response Team ("CPRT") and conducted a far-ranging and unprecedented Corrective Action Program (* CAP") at CPSES. This included comprehensive design and hardware validation programs to assure that CPSES met all regulatory requirements and could be operated safely.

In early 1987, TU Electric and CASE began an extensive information exchange process, including a nunber of technical meetings during which TU Electric explained its Corrective Action Program, and responded to any questions or concerns of CASE and its technical consultant. Due in large measure to that process and the comprehensive nature of TU Electric's ongoing programs, CASE and TU Electric entered into negotiations in mid-1988 in an effort to resolve their remaining technical differences. Those negotiations were successful and on June 28, 1968, CASE, Mrs.

Juanita Ellis and TU Electric executed a " Settlement Agreement."

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, The Settlement Agreement and " Joint Stipulation," that was subsequently executed by TU Electric, CASE and t-.e NRC, specified the terms of -the agreements to seek dismissal of the licensing proceedings and formed the basis for the Board's dismissal of the licensing proceedings.

The essential substantive terms of the agreements between TU Electric, CASE, and the NRC Staff (as publicly disclosed by TU Electric and LASE in a July 13, 1988 prehearing conference before the ASLB) were ab follows:

3. TU Electric agreed to the continuation of the Corrective Action Programs in accordance with the Joint Stipulation; 4/

2. A CASE representative was appointed as a member of-the Operations Review Committee for CPSES and was parmitted to hire technical consultants at TU Electric's expense; 2/

3. The parties agreed to the Joint Dismissal of the licensing proceedings; H/

4. TU Electric agreed to reimburse CASE in the amount of $4.5 million for its expenses, debts, attorneys fees and other costs incurred by CASE in the past and for any additional expenses CASE might incur in the future in closing out its participation in the NRC licensing establishing its oversight role; 2/ proceedings and and S. TU Electric-agreed to enter into good faith negotiations with workers who had discrimination 4/ Joint Stipulation at 7-8.

2/ Settlement Agreement at 4;-Joint Stipulation at 9.

H/ Een LBP-88-18B, 28 N.R.C. 103, 104 (Joint Motion for.

Dismissal).

1/ Settlement Agreement at 4.

4 claims as well as compensate workers assisting CASE in the total amount of $5.3 million. 1D/

Neither the Settlement Agreement nor any other agreement precluded aither CASE or any present or former worker at CPSES from bringing any safety-related or other matter to the attention of the NRC. 11/

Under the Joint stipulation, the NRC staff agreed to ,

resolve disputes between CASE and TU Electric concerning the design, construction, or operation of Comanche Peak. 12/ CASE obtained the right to appeal any such NRC staff decision on its concerns to the Director of the Office of Nuclear Reactor Regulation. 12/

On July 1, 1988, the parties to the proceedings filed with the Board a Joint Stipulation and Joint Motion For Dismissal. On July 5, 1988, the Board 3ssued a "Memorsndum and Order" terminating the proceedings subject only tr the completion of the act of admitting certain documents referenced in the Joint Stipulation into the record at a prehearing' conference to be held on July 13, 1988, 11/

1D/ Settlement Agreement at 3; (Tr. ;68-69.)

11/ See Joint Stipulation at 14 (which sp5cifically states that

"[n]othing in thisLstipulation shall prohibit CASE from continuing to exercise its existing rights to communicate with the NRC or any of its offices.")

12/ ld at 12.

12/. Id at 13.

11/ LBP-88-18A, 28 N.R.C. 101.

From July 7 to July 13, 1988, a number of petitions to intervene were filed with the Board which contained allegations similar to those raised by Petitioners. For example, an individual designated as " John Doo" submitted a letter to the Chairman of the Commission on July 10, 1988, with copies t the ASLB. He alleged that the NRC had no. properly investigat the concerns he had submittoa several years earlier, and that TU t Electric had committed perjury. Similarly, Mr. Lon Burnam mado a limited appearanco etatomont before the ASLB in which he brought up concerns about the ability of "whistleblevers" to testify and also accused TU Electric of perjury. (Tr. 25,230.) The Chairman of the Licensing Board rejected Mr. Burnam's unsubstantiated l

allegations and pressed Mr. Burnam for proof that any such actions wore committed. (Tr. 25,230-32.) Mr. Burnam admitted:

"I don't have personal proof; I have only suspicions." (Tr.

25,231 (Burnam).)

At the prehearing conference, the Board considered extensive statements by TU Electric, CASE and the HRL Staff in support of dismissal of the proceedings. (Tr. 25,266-283.) In addition, TU Electric providod a summary. of the terms of the Settlement Agreement end the Joint Stipulation and agreed to make the Settlement Agreer.w it publicly availabic spon dismissal of the proce9 dings. (Tr. 25,266-70.) on the basis of the pleadings and the ergument of the parties, the Board issued an order dismissing the proceedings. (Tr. 25.269); LBP-88-18B, 28 H.R.C. 101.

The Commission subseque.4tly denied two petitions to intervono related to the licensing of CPSES. CLI-P9-12, 28 H.R.C. 605; CL1-89-06, 29 H.R.C. 340. Specifically, the Commission denied a late-filed petition from CFUR which asserted, in parc, that a former Comanche Peak worker, James J. Macktal, Jr., had entered into an agreement with his former employer Brown

& Root in settlement of claims before the DOL and that the settlement allegodly prevented the worker from contacting the NRC Staff. CLI-88-12, 28 N.R.C. at 612; CFUR's First Supplement To Its August 11, 1988 Request For Hearing and Petition for Leave To Intervene at 5 (Sept. l', e 1988). The Commission concluded that in addition to broadening the scope of the Comanche Peak OL proceedings, the validity of Mr. Nacktai'1 settlement was pending -

before the DOL and did not constitute grou,:ds for a her. ring.

28 N.R.C. at 611 n.8. The Commission concluded that Mr. Nachtal's settlement agreement did not constitute " good cause" for CUUR's f ailure to seek a timely intervention. Idi at 608.

The Commission also rejected a motion for limited intervuntion by Mr. Macktal who sought to "brief" the Ccamission on the interpretation of his agreement and a reconsideration of the Commission's earlier order (CLI-88-12). Een CLI-89-06, 29 N.R.C. 348. 'Although the Commission affirmed the denial of CPUR's petition for intervention, in recognition of Mr. Macktal's pending proceedings before the DOL, the commission exprecsly i

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withdrew any comment in CLI-88-12 concerning the valAdity of the agreement. 29 N.R.C. at 354-355.

Subsequently, CPUR appealed the Commission's decision not to reopen the CPSES proceedings, and Mr. Macktal intervened in that proceeding. The U.S. Court of Appeals for the Fifth Circuit affirmed the Commission's decision stating that CPUR did not present good cause for its late filing or otherwise demonstrate that its lato filing should be accepted. In particolar, the Court discussed the Hecktal agreement, found that issues regaroing the agrooment were moot, and ruled that "CPUR cannot rely on such an agreement to establish good cause for its late-flied petition." CitirAna.ror rair Utility Regulation v.

HEC, 898 F.2d 51, 54-56 (5th Cir.), cert. denied, 111 S. Ct. 246 (1990). Similarly, Mr. Macktal's petition for review of the Commission's decisiors was dismissed by the U.S. Court of Appeals for the District of columbia. Een Eat):tal v NRC, Docket No. 89-1034, (D.C. Cir. June 11, 1990). 15/

Additionally, in July 1989, Mr. Burnam submitted a motion to reopen tha record in the CPSES OL and CPA Proceedings 15/ Mr. Burnam also sought " leave to amend or file a renewed motion to intervene." (1'rnam Motion at 1, 0.)

15/ In a xelated case, the U,S. District Court-for the Fifth Circuit reversed a decision by the Secretary of Labor which excised the provision in question from the Hacktal settlement agreement. Eachtal v secretary of Labor, 923 F.2d 1150 (5th Cir. 1991).

li/ Motion to Reopen the Record (July 13, 1989) ("Burnam Motion").

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As grounds for reoponing the record, Hr. Burnam allegod thats (1) he uncovered "now evidence" regarding Mr. Hacktal's claim that he was paid " hush" money not to testify before the ASLD; and (2) "f also and perjurious statements" woro inade by witnosses for TU Electric in a "whistleblower" action brought by Mr. S.H.A.

Hasan before the DOL, and in proceedings before the ASLB betwoon 1983 and 1985. However, Mr. Burnam withdrew his motion to reopen before the NRC could rule on it.

On robruary 8, ." )0, the NRC issued an OL for CPSES Unit 1. Unit 1 completed its first cycle of operation in the fall of 1991.

B. Ernicu !LR efle W s_Dy_t h e_N RC_Sinii On a number of occasions, the NRC Staff has reviewed allegations similar to those being raised by the Petitioners. In each caso, the Staff concluded that the allegations did not have

.tny safety significanco or that the allagations were being properly addressed by TU Electric.

In the CPSES OL hearings, CASE presented testimony by Mark Walsh and Jack Doyle, One of the issues pertained to the adequacy of the organizational and design interfaces among the three groups that then had responsibility for the design of CPSES pipe supports. Among other things, Hessrs. Walsh and Doyle were concerned that the three pipe support design groups were using different design approaches, and therefore woro violating NRC and the industry quality requirements for design. The NRC Staff established a special Inspection Team (" SIT") to investigate the n u

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Walsh/Doyle issues. The SIT concluded that each of the design groups was required to satisfy the requirements of the American Society of Mechanical Engincors ("ASME") Code and Project Specification MS-46A, that each of the groups had its own approach for satisfying these design critoria, and that this arrangement did not violate any NRC regulations. 11/ The SIT inspection report was submitted into evidence in the hearings, and its conclusions were accepted by the ASLD. 1B/

In early 1986, S.M.A. Hasan brought a number of concerns to the NRC, with CASE's assistance. In general, Mr.

Hasan's technical concerns were similar to the pipe support design (Walsh/Doyle) issues raised by CASE in the operating license proceeding. In particular, Mr. Hasan alleged that pipe support design packages were being transferred from one pipe support design group to another group, which would utilize design critoria that were different from the criteria used by the first group. On May 28, 1987, the NRC requested that TU Electric review these allegations. Ja/ TU Electric responded on July ll/ NRC fnspection Report 50-445/02-26, 50-446/82-14 (Feb. 15, 1983) at 10-13.

13/ Sexas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-81, 18 NRO 1410, 1450-52 (1983). As the ASLB found, "since neither the (s)pecification . . . nor the ASME Code dictate in detail the means by which an engineer is to satisfy the design criteria, differences in engineering approaches occurred between the three parallel pipe support groups." LBP-83-81, 18 NRC at 1451, 12/ Letter from C.I. Grimes (NRC Office of Special Projects) to W. G. Counsil (TU Electric) (May 28, 1987).

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2, 1987 2D/ On January 6, 1988, the NRC provided to Mr.

Hasan not only TU Electric's response but also the Staff's evaluation of Mr. Hasan's pipo support allegations. The NRC Staff found that "the allegations, both individually and collectively, havo boon adoquately addressed." 21/ In regard to Mr. Hasan's concerns that inconsistent design critoria were being used in the cortification of pipo support design, the NRC Staff founds l

When the SWEC piping and pipe support roqualification program (in the CAP program) was initiated, the design of pipe supports became the responsibility of a singo design organization (SWEC). Only one design critoria document (CPPP-7) is being used for the roqualification of all ASME Code Class 1, 2, and 3 pipo supports at CPSES. Any identified deficiencies which might have resulted from the use of inconsistent design critoria will bo corrected. Thus, the Staff finds that the collectivo allegation associated with the use of inconsistent pipe support design criteria by the previous design groups has been adequately resolved. 22/

Thus, the NRC Staff has previously concluded that the type of allegations raised by the Petitionerr do not represent a safety concern. Furthermore, in various letters in 1987 and 1988, CASE provided the ASLB with copies of Mr. Hasan's allegations, TU Electric's response to the allegations, and the 2D/ Letter from W.G. Counsil (TU Electric) to U.S. Nuclear Regulatory Commission (July 2, 1987) (No. TXX-6535).

21/ Letter from Phillip P. McKee (NRC Office of Special Projects) to S.H.A. Hasan (Jan. 6, 1988).

12/ Letter from Phillip F. McKoe (NRC Office of Special Projects) to Mr. S.M.A. Hasan, Enclosure 1 at 3 (Jan. 6, 1988).

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l NRC's disposition of the allegations. 23/ Thorefore, the ASLB ,

was fully aware of Mr. Hasan's allegations and their resolutions when it decided to approve the settlement of the CPSES OL proceeding.

C. BackgrQund Of PetitiongIn The motion to reopen represents the latest of a series of claims, petitions, and inw suits filed by the Down against TU Electric and the NRC. As discussed below, the NRC has found that the Daws' claims are unsubstantiated and that they have no safety information regarding CPSES.

Mr. Dow claims that he was hired in January 1991 by an individual employed at CPSES to investigato certain matters and to attempt to negotiate a settlement betweets tl.a individual and TU Electric. He also claims that, as a result, he came into possession of documents and audio tapes of CPSES switchboard conversations which allegedly identify safety violations at CPSES, including permission by NRC for CPSES to ignore possible hazardous conditions.

Subsequently, TU Electric and the NRC each met with Mr. Dow in an attempt to learn of any safety concerns he may have. However, Mr. Dow's concerns ver- general in nature or identified matters that were already knkwn, and he did not divulge any specific new safety issues and/or give TU Electric or the NRC access to the tapes.

23/ CASE letters to the ASLB dated July 8, 1987, and May 17, 1988.

In May 1991, the NRC issued a subpoena requiring Mr. Dow to make materials in his possession available for copying by the NRC. Mr. Dow submitted a motion to quash the subpoena, which was denied by the Commission in June 1991. However, rather than comply with the subpoena, Mr. Dow fled to Canada in July and stated that he has requested political asylum, claiming that his life was in danger.

The Dows also initiated a number of legal proceedings against the NRC, TU Electric, and numerous other parties. These actions include a petition for an injunction against operation and construction of CPSES in the U.S. District Court for the Northern District of Texas, a complaint for damages in the U.S.

District Court for the Western District of Pennsylvania, and.a petition for review of issuance of the CPSES OL in the U.S. Court of Appeals for the D.C. Circuit. Additionally, on September 1, 1991, the Dows submitted a letter to Chairman Selin requesting that the CPSES OL be revoked and that a new OL proceeding be

-initiated. Each of these filings was also devoid of any specifje safety allegations.

On October 3, 1991, the NRC dscided not to pursue the subpoena against Mr. Dow. The NRC concluded that "under the circumstances, including all communications with you, there is no reasonable basis to believe that you are in possession of safety information regarding the Comanche Peak facility." (Letter from Martin to Dow of 10/3/91 at 2). On November 25, 1991, Chairman

Solin issued a letter to Mr. Dow stating that the Commission agreed with and supported the NRC's conclusion.

III. ABOUMENT A. A_MQtion To RgDpen Is_Not_The Proper Remedy In This Cala According to the Commission, "a motion to reopen under J

10 C.F.R. S 2.734 goes to the need for further hearings in a formal matter which is pending before the Commission." Houston '

Lighting & Power co. (South Texas Nuclear Plant) Docket Nos. 50-498-OL and 50-499-OL, slip op. at 1, (June 24, 1987)

(" South Texas"). Once a proceeding is fully litigated and becomes final, consideration of a motion to reopen is no longer appropriate. 21/ Id , (citing public service-co. of Indiana (Marble N111 Nuclear Generating Station, Units 1 and 2), ALAB-530, 9 N.R.C. 261 (1979)). In the South Texas case, the Commission declined to entertain the intervenor's motion to reopen because the Board had already concluded hearings on the application for Operating Licenses for the South Texas Plant when the motion was submitted. 25/

21/ A good policy reason exists for this principle--if parties were allowed to reopen records after they had been closed, there would be little hope that the administ 1tive process could ever be consummated. Se.e, e.g., City _t

• Ange.la Broadcasting v. ECC, 745 F.2d 656, 675 (D.C. cir. 1984).

25/ The Commission noted that its decision did not leave the movant remediless. The Commission stated thats once new evidence arises after an issue has been fully 1;tigated and a final agency decision has been (continued...)

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'For similar reasons, the Petitioners' motion to reopen is not appropriate for consideration. The Board concluded hearings in the CPA and OL proceedings for CPSES in July 1988.

The OL for CPSES Unit was lasued in February 1990 and the construction permit for Unit 1 is no longer in effect. Thus,  ;

there is no longer a "pending" proceeding which is subject to r reopening under 10 C.F.R. S 2.734.

B. Petitioners Have No Right To Request That The Record Be Reopened Since They Have Never Been A Party To The P_rocandings Petitioners seek to reopen the Comanche Peak Operating and Construction Permit Amendment licensing proceedings even though they have never been.a party to the licensing proceedings.

In these circumstances, they have no right to request that the i

Commission reopen this record. The rights of a nonparty, such as Petitioners, are clearly set forth in thu Commission's  ;

regulations (10 C.F.R. S 2.715 (1991)) and arn restricted to a limited appearance at hearings or a prehearing conference. A  !

nonparty.has no other " rights" to participate in a hearing before the Nuclear Regulatory Commission. Therefore, the motion to 25/( . . .contint ed) .

once new evidence. arises after an issue has been fully litigated and a final agency decision has been rendered, one may seek-relief by petitioning the Staff under 10 C.F.R. S 2.206.

- fouth TexasHat 1-(citing Carolina Power & Light CompaDY (Shearon Harr.4e Nuclear Power Plant), CLI-79-5, 9 N.R.C.  ;

607, 610 (1979)). .

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reopen should be summarily denied.

C. Petitioner 1_Have Nat_ Demonstrated A_Right To IntAr1RDA On the face of the motion, it appears that Petitioners are seeking leave to file a petition to intervene. (Hotion at 1-2.) Petitioners have not satisfied or even addressed a <

single requirement for a late-filed petition to intervene.

Petitioners implicitly acknowledge that the motion itself is insufficient to constitute a petition to intervene since they state that they will not provide the basis for their intervention until 45 days from now. (Motion at 8.) At most, the motion is a statement of an intent to seek intervention within 45 days.

Even if the motion were construed as a petition to intervene, it is facially deficient and fails to make the requisite showing that their extremely late petition to intervene should be granted. A person seeking to intervene into a licensing proceeding before the NRC must demonstrate standing and proffer at least one valid contention. Sag Mississippi Power &

Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423, 424 (1973); 10 C.F.R. S 2.714(a)(2) and (b) (1991).

I t

- 22 -

The motion makes no showing as to standing, 21/ and does not identify a valid contention.

Furthermore, under 10 C.F.R. $ 2.714(a)(1), an untimely petition to intervene may only be granted upon a balancing of the following factors (1) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which-the petitioner's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be reprenented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues-or delay the proceeding.

10 C.F.R. 2.714(a)(1)(1991).

In filing-untimely motions,-the burden of persuasion is placed on the oetitioner who must address each of the 5 2.714(a) 21/ Judicial concepts of standing are normally applied in determining whether a party has sufficient interest in-the proceedings. EugSL_ Sound Power & Light co. (Skagit Nuclear Power Project, Units _1 and 2), ALAB-599, 10 N.R.C. 162 (1979), vacated on other grounds, CLI-80-34, 12 N.R.C. 40?

(1980). Such standards require a showing that: (1) the action being challenged could cause injury-in-fact to the-person seeking to establish standing; and (2) such injury is-arguably within the-zone of interests protected by the-statute governing the proceedings. Petitioners.cannot-demonstrate that they1have standing because they are not within_the geographical zone that would be affected by an accidental release of radiation from CPSES. Sem R A ,

Houston Lighting &_ Power co s, (South Texas Project, Units 1 and 2), LBP-79-10, 9 N.R.C. 439, 443 (1979); Detroit Edison company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 N.R.C. 73, 78-(1979). Petitioners appear to reside in either Pennsylvania or Canada, while CPSES is located-in L Texas.

S

, w ,, -- c,,,--,--ew< ,.m ,-,~s, a,-, --

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l I

' factors in the petition itself. angton Edison cn s (Pilgrim Nuclear Power Station), ALAB-816, 22 N.R.C. 461, 466 (1985).

Although all of the factors must be considered, a failuro to demonstrate good cause for failure to file on time requires a compelling showing on the remaining four factors. Nuclear Fuol l services. Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 l

N.R.C. 273, 274-75 (1975); Eh11Adolphia Electric Co. (Limerick '

Generating Station, Unit 1), LDP-86-9, 23 N.R.C. 273, 279 (1986).

The Petitioners' motion is patently deficiunt as it fails to address any of the five criteria necessary to be granted status as 'a late-flied intervenor under the Commission's l

-regulations._ In particular, the Petitioners have failed to address " good causa" for the untimely filing and make no showing on'the' remaining factors. Thus, the Petitioners have failed to satisfy their burdon and their petition should be summarily denied. ,.

Furthermore, public policy-requires the Commission to i reject the tardy petition. The public, the NRC, and the parties have a substantial interest in the timely and orderly conduct of  :

Commission proceedings. Fairness to all parties and "the ,

obligation of administrative agencies to conduct their functions-

= with efficiency and economy" require that adjudications be conducted without unnecessary delay. Nuclear Fuel Services. Inc. '

(West Valley Reprocessing Plant), CLI-75-4, 1 N.R.C. 273, 275 (1975)=(citing 10 C.F.R., Part 2, app. A (1975)). As stated by the Atomic Safety and Licensing Appeals Boards n....--m,_ ,. __.,._,_....~,.._,_-...,.---,._.,..-_-,..--,_....,-_,_.a_,.---,-_,_-_...~----.,

4

. . . the promiscuous grant of intervention petitions inexcusably filed long after the prescribed deadline would pose a clear and unacceptable threat to the integrity of the entire adjudicatory process. See ALAB-552, supra , 10 NRC at 6-7, quoting from Duke Power CQA. (Cherokee Nuclear Station, Units 1, 2, and 3),  ;

ALAB-440, 6 NRC 642, 644 (1977). More specifically, '

persons potentially affected by the licensing action under scrutiny would. be encouraged simply to sit back r and observe the course of the proceeding from the sidelines unless and until they became persuaded that their interest was not being adequately represented by the existing parties and thus that their own active (if belated) involvement was required. No judicial tribunal would or could sanction such an approach and it is equally plain-to us that it is wholly foreign-to the contemplation of the hearing provisions of both the Atomic Energy Act and the Commission's regulations.

Puget Sound Power and Light Co.,(Skagit Nuclear Power Project, Units 1 and 2), ALAB-599, 10 N.R.C. 162, 172-173 (1979), vacated on other grounds, CLI-80-34, 12 N.R.C. 407 (1980)(footnotes omitted).

The Court of Appeals for the District of Columbia affirmed the Commission's policy:

[A] person should not be entitled to sit back and wait until all interested persons who do so act have been heard, and then complain that he has not been properly treated. To permit wach a person to stand aside and speculate on the outcome .-. . and then permit the waole matter to be reopened in his behalf, would create an-impossible situation.

Easton Utilities commission v. Atomic Energy commission, 424 F.2d 847, 851 (D.C. Cir. 1970) (quoting-Rad = River Broadcasting Co. v.

ECC, 98 F.2d 282, 286-87, cert. denied, 305 U.S. 625 (1936)).

The Court further stated:

We do not find in statute or case law any ground for accepting the premise that proceedings before <

administrative agencies are to be constituted as endurance contests modeled after relay races in which the baton of proceedings is passed on from one legally

.- - -- . - - ~ , - ,-- . - . - - - . - . - - - - .

exhausted contestant to a nesly arriving legal stranger.

424 F.2d at 852.

The Commission need not look any further than the CPSES proceedings for a rationale for rejecting Petitioners' untimely motion. Specifically, the U.S. Court of Appeals upheld the Commission's rejection of CFUR's untimely petition to intervene.

Af ter noting that CTUR's petition was filed nino i' ears out-of-time, six years after CPUn's voluntary withdrawal, and a month after the hearings had been dismissed, the Court concurred with the Commission's decision that 1) the CASE settlement did not provide good cause for an untimely petition, and 2) the grant of an untimely petition would delay the proceedings and broaden the issues in the proceeding. SE2 Citizent_For Fair Utility Regulation v NRC, 898 F.2d 51 (5th Cir.), cert. denied, 111 S.Ct.

246 (1990).

These principles are clearly applicable to the Petitioners' motion, which should accordingly be rejected.

Petitioners should not be allowed to intervene into this proceeding and reopen these proceedings at such a lato date. To allow Petitioners to reopen these proceedings after nine years of litigation, a settlement between the parties, and the issuance of the OL for CPSES Unit I would encourage potential intervonors to sit back and wait until a plant is operating to intervene.

Therefore, Petitioners' motion should be denied in order to preserve the integrity of the adjudicatory process.

I

• . I i

- 26 -  !

D. The Notion To Reopen The Record Does Not Estis2y The_Comminion!n Reauirements In 10-c a r.n. s 2.744ab Even if the infirmities indicated above did not exist, [

i Petitioners' belated motion would still not support a decision by the Commission-to reopen the record in the Comanche Peak i

proceedings. The Commission's regulations state that "(a) motion i

. to reopen a closed record to consider additional evidence will  !

l not be' granted _unless the following criteria are satisfied":

(1) The motion must be timely, except that an  !

exceptionally grave issue may be considered in the i discretion of the presiding officer even if untimely presented.

l (2) The motiot. must address a cignificant safety or [

environmental-issue.

(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been ,

considered initially.

10 C.F.R. S 2.734(a)(1991)'(emphasis added).  :

Simi3ar to a person-who files an untimely petition to f

intervene, the proponent of a motion to reopen a closed record-in a licensing proceeding shoulders a " heavy burden." Kansas can and rimetrie co..(Wolf: Creek Generating Station, Unit No. 1),

- ALAB-462, 7 N.R.C. 320, 338 (1978).- The burden is on the movant to: satisfy _the requirements of 10 C.F.R. S 2.734(a), bouisiana  !

i Enxer & Light Co. (Waterford Steam Electric Station, Unit 3), i CLI-86-1, 23 N.R.C. 1_(1986). Furthermore, the motion must '

4 provide supporting information that is more than mere

- allegations; the-information must be tantamount to evidence.

- Specifically, the new evidence supporting the motion must be wy ~,-evy ,,-. ,.y,,.,.-y,.f..% -,-wi+--.w,--.7 _.,-,.,gm-..m.,,,ny-.. --,

,,,,s,c ---%., -3o ,-,,%._v..,w-,w., ..w. . . . w ,- 3E .--o m d - v.n.~. ,, ,r w *,,e -r*e,i-=.

I 27 -

" relevant, material, and, reliable." Encific cas a riectric co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAD-775, 19 N.R.C. 1361, 1366-67 (1984). Purther, the evidence should be in affidavit form given by competent individuals with knowledge of the facts or experts in the disciplines appropriate to the issues '

raised and must specifically detail why each of the requirements are satisfied. 22/

Petitioners have utterly failed to satisfy this burden. 23/ The motion consists solely of vague allegations about "hosh" money, "falso and misleading statements to the (Atomic Safety and Licensing) Board," and unspecified " evidence 22/ 10 C.P.R. S 2.734(b) requires that:

The motion must be accompanied by one or more factual affidavits which set forth the factual and/or technical basis for the movant's claim that the criteria of paragraph (a) of this seccion have been satisfied.

Affidavits must be given by competent individuals with knowledge of the facts alJeged, or by experts in the disciplines appropriate to the issue raised. Evidence contained in the affidavits must meet the admissibility standards in S 2.743(c). Each of the criteria must be separately addressed with a specific explanation of why it has been met.

2A/ Petitioners have compiled a compendium of allegations and

" supporting" documents but fall to present this material in a manner that would allow the Commission to evaluate the significance of their complaints. Exhibits that are illegible, unintelligible or fail to identify their source have little probative value. Louisiana Power & Light Co s (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C.-5 (1985). Petitioners' failure to cite to specific pages or portions assertively pertinent to the charge makes their exhibits of no value to the Commission.

Id. The lack of organization and disorderly presentation of Petitioners' motion is a sufficient ground for denying their Een Encific caa_LElaciric c-motion to reopen. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 N.R.C. 1362, 1368 n.22 (1984).

, _ ,, . -- -- - - + - - , - - - .

l i

to shew that there was duplicity between members of the NRC and )

members of the upper management of the applicant, to secure the license." (Motion at 3-5.) The motion is not supported by competent affidavits. 22/ Instead, the Petitioners attach lawyer's arguments in the form of briefs that were presented by Mr. S.M.A. Hasan before the Secretary of the DOL. (Exhibit F attached to the Motion.) These briefs are not evidence. They are merely allegations and argumentative conclusions.

Furthermore, the Department of Labor has not accepted the arguments contained in these briefs 3D/ Since Petitioners have not satisfied the evidentiary standard of 10 C.F.R.

S 2.714(b), their motion to reopen the record should be summarily denied.

As demonstrated below, the motion does not indicate wny any of the materials that it seeks to introduce into the records (3) are timely raised;_(2) have safety significance; or (3) would have led Licensing Board to deny the jois:t motion for dismissal or the issuance of the CPA or OL. Therefore, the motion must be denied for failure to satisfy the requirements of 10 C.F.R. S 2.734(a).

21/ The Motion includes one " affidavit" that relates solely to Mr. Ha;ktal's settlement agreement with Brown & Root.

Mr. Macktal's agreement was consicered by the Commission in an earlier decision and does not constitute grounds tor a hearing.

I JD/ Eng Hasan v Nuclear Power Services. Inc , Case No. 86-ERA-24, " Recommended Decision and Order" (Oct. 21, 1987), " Final Decision and Order" (June 26, 1991). The Secretary's

decision has been appealed to the U.S. Court of Appeals.

l

~ ~ ~ ~ ~ ' ~ ~

l

1. The Xotion In Not Tingly _ Filed, To be timely, the moving party must show that the issue i sought to be raised could not have been raised earlier. Pacific can a riectric co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 N.R.C. 1361, 3366, Aff'd sub nog San Luis chingn_Hothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984),  !

EAcated in part on other grounds, 760 P.2d 1320 (1985), aff'd on reh'9 En banc, 789 F.2d 26 (1986). Notions to reopen which are based on information which has been available to a party for one year or mort are-gennrally rejected by the Board. Metropolitan Edison co. (Three Mile luland Nuclear Station, Unit No 1), ALAB-SIS, 22 N.R.C. 198 (1988). An untin,ely motion to reopen the

-record will not be granted unless the motion raises an "excepElonally gravo" issue rather than just a significant issue.

Eul:t 1 'J:_S.ervice co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-866, 27 N.R.C. 74, 76, 78 (1988) (citing 10 C.F.R S 2.734(a)(1)(1988)).

-In the instant case, the motion to reopen has not been l timely filed and has not raised any " exceptionally grave" issues which1would warrant. consideration. Petitioners * "new evidence"

t. Leunsiets entirely-of allegations that have been a matter of ,

public record and hava long been available. In fact, some of

~ Petitioners'_ allegations are based upon material submitted on the CPSES docket years ago. 11/- As discussed below, the remainder.

31/ For example,-Petitioners allege that-they have "new evidence" concerning the payment of the " hush money" to CASE (continued...)

of Petitioners' allegations are almost identical to claira mada by Mr. Hurnam and other petitioners in 1988 and 1989.

Mr. Burnam raised the concern that Mr. Hacktal was paid >

" hush" &:aey in hie July 1909 : notion to reopen and in his July 1988 limited appeacance statement before the Licensing Board. '

(Burnam Hotion at 2; Tr. 25,230.) Furthermore, Nr. Hacxtal's allegations (including some of the exact same affidavit and exhibits :ited by Petitioners) were presented by Cr0R to the Commiss! e

• September of 1988. 22/ Thus, Petitioners' allegations about Mr. Nachtal and his settlement agreement cannot be considered " timely".

Petitioners also claim that "falso and misleading statements" ,<ere made by TU Electric before the Board and the DOL. (Notlou at 4-5.) The gravamen of Petitioners' complaints is that the partie,c failed to disclose to the Board the allegations of "porjury" that were contained in pleodings that Nr. Hasan presanted to the Secretary of Labor and that the testimony supporting these allegations conflicts with testimony 21/(... continued) -

and the " Secret Settlement Agreement" between CASE and TU Electric. (Motion at 3, 6, 8). However, the Settlement Agreement, with its provisions for reimbursal of CASE expenses, was submitted to the ASLB and mado part of the record at thu time the CPSES CPA and OL' proceedings were dismissed. San LBP-88-18B, 28 N.R.C. 103. Similarly, the Petitioners cite other filings submitted by CASE to the ASLB. (Motion at 7-8).

32/ CFUR's First Supplement to Its August 11, 1988 Request For Hearing and Petition for Leave to Intervene (Sept. 12, 1988)

-(The September 9, 1988 Affidavit of Joseph J. Macktal, Jr.

and Mr. Nacktal's Settlement Agreement are attached to Mr.

Burnam's Motion).

L

-. , .,. ,, , , . ~ , - - -

presented to the Board. (Sea Motion at 7.) In no way can this belated attempt to resurrect Mr. Hasan's allegations be considered timely. Mr. Hasan's claims are contained in briefs submitted to the Secretary of Labor on February 6, 1988 and April 18, 1988 33/ Not only were the DOL proceedings a matter of public record, but Mr. Burnam raised his suspicions of perjury" before the Licensing Board in July 1988 (during the prehearing conference (Tr. 25,230)) and in July 1989 (in his motion to reopen the proceedings). 11/

Ia au:rrsry, Petitioners seek to reopen the record on allegations that have boon available to them for years and on allegationc thit Mr. Burnam raised more than two years ago. ,

Therefore, the allegations raised by the Petitioners are not timely. Thus, the motion _to reopen fails to satisfy the first criteria in 10 y..ff,R. S 2.?34(a), and should be rejected for its lack of timelinass.

2.- Petitioners have not raised a significant safety or, _ environmental _concernu _. __ _ _ _ . _

The Commission'e regulations mandate that a motion to reopen the record raise a serious safety or environmental issue.

10 C.P.R. 5 2.734(a)(2)(1991). The Petitioners' motion fails to indicate why any of-the matters that they propose to introduce 13/ Brief to the Secretary of Labor, (Feb. 6, 1988)(Docket 86-ERA-20); Complainant *s Response to Respondents Brief to the Secretary of Labor (April 18, 1988)(Docket 86-ERA-20)

(Attachment G to the Motion).

l 31/ These allegations are currently the subject of a Section l 2.206 proceeding.

l

k 4

)

G t

could raise a serious safety or environmontal concern.

Consequently, the Commission shoulu deny their motion to reopen the record in the Comanche Peak proceedings.

First, the Petitioners refer to allegations that Mr. Macktal was paid "husha money not to bring safety concerns to the NRC. (Hotion at 3, 4.) However, in 1986,ithe NRC Staff investigated and published an inspection report on all the allegations that Mr. Macktal was willing to disclose. 25/ A few of his concerns were substantiated by the NRC Staff and TU Electric promptly initiated correctivo actions taken to resolve  ;

these concerns. 21/ Thus, Mr. Macktal's claim to have any remaining safety concerns must be viewed with nkepticism. 22/ ,

O In any case, the allegations surrounding Mr. Nacktal's settlement: ,

agreement with Brown & Root have not been expressed with sufficient specificity to conclude that they address a significant safety issue. Finally, the Commission has reviewed ,

Mr. Macktal's claims of " hush

• money and datormined that they do net constitute grounds for a hearing and that the DOL is the proper forum for his cliegations. CLI-88-12, 28 N.R.C. at 612; CLI-87-06, 28 N.R.C. at 355. The Courts hhve upheld the 25/ NRC Inspection Report 50-445/86-15,50-446/86-12, Appendix C.3.b. at 6-36 (Dec. 22, 1986).

l 31/ Sen Letters from Counsil (TU Electric) (TXX-6850) and (TXX-6466).

21/ In this regard, the Commission was forced to subpoena Mr. Macktal in order to ascertain if he had any allegations concerning safety at Comanche Peak. In._In_JnSeph_L.

Macktal, No. 01-4-89-008, slip op, at 7 (June 22, 1988).

- 33 -

Commission's determination. Ep.g Citizeis For Fair _ Utility Regu1Atlen v NRc, 890 P.2d 51 (5th Cir.), cerL. danigd, 111 S.Ct.

246 (1990). Sen alan, Rachial v_ Mnc, Docket No. 89-1034 (D.C. ,

Cir. June 11, 1990). Thus, the Comancho Peak licensing proceedings should not be reopened to consider Mr. Macktal's allegations.

Second, the Petitioners also refer to allegations raised by Mr. Hason. (Motion at 5, 6.) However, the Petitioners seam to be unaware of the extensive investigativns of Mr. Hasan's concerns that were performed by TU Electric and the NRC Staff. Hr. Hasan first brought his concerns to the NRC, with CASE's assistance, in January 1986 on a confidential basis. 28/ His technical concerns were wimilar to the pipe support design ("Walsh-Doyle") issues raised by CASC in the OL proceeding. Those issues played a niajor role in the development of both the CPRT Program Plan and the Corrective Action Program, which directly addressed most of Mr. Hasan's concerns. The NRC prepared a list of Mr. Hasan's 65 allegations, acked him to review them for accuracy, and then, on May 28, 1987, requested that TU Electric review these allegations. 21/ TU Electric

responded on July 2, 1987. AD/ On January 6, 1988, the NRC 2B/ SEE Letter from P.F. Mcl

ee (NRC, Of fice of Special Projects) to S.M.A. Hasan (Jan, 6, 1988).

31/ Letter from C.I. Grimes (U.S. NRC, Office of Special Projects) to W.G. Counsil (TU Electric) (May 28, 1987).

AD/ Letter from W.G. Counsil (TU Electric) to U.S. Nuclear Regulatory Commission (July 2, 1987) (No. TXX-6535).

L

_ _ _ . _ . _ .~ _ . _ ._. _ _. _ _ _ - . _ _ . _ _ _ . -

t e

t

h. l provided-to Mr. Hasan not only TU Electric's response but also  !

the Staff's Evaluation of Mr. Hasan's pipe support allegations.

The Staff found that "the allegations, both individually and '

collectively, have been adequately addressed." 11/

, r The NRC Staff has considered Mr. Hasan's claim that the '

pipo support design groups at Comanche PeTk maintained different design criteria for the certification of pipe supports. Eau ,

Letter from McKee (NRC, Office of Special Projects) to Hasan Enclosure 1 at 2, Enclosure 2 at 3, J tem 23- (of Jan. 6,- 1988) . I The NRC Staff concluded that the Stone and Webster ("SWEC")  !

requalification program was initiated to requalify all American Society of Mechanical Engineers ("ASME") Code Class 1, 2 and 3 j, pipe supports to a single design criteria and would correct any  :

deficiencies that would have resulted from inconsirtent design criteria.- 1d4., Enclosure 1 at 2. - Thus, Petitioners' concerns about the'use of different design criteria by different groups no  !

- longer has any potential safety significance.  !

Finally, Petitioners' allegations of perjury are based

^

i on the testimony presented by Mr. S.M.A. Hasan before the DOL.

' In regard to the veracity of this witness, the ALJ presiding over Mr. Macktal's section'210 complaint stated:

As the main support for his complaint, complainant cited his. frequent raising of " safety concerns" to management and his oft-repeated threat to "go to the  !

NRC" unless his concerns were satisfied. He also claims he telephoned an. employee of the NRC beginning in February of 1985 to convey _these " safety concerns."

11/ Letter from Phillip F. McKee (U.S. NRC Office of Special Projects) to Mr. S.M.A. Hasan-(Jan. 6, 1988).

--- -~

9

, sewim _ me + y--w-e.-w-etwm,weiww-,=--m-=r.-,y<- r- we r , mou*.==-,*e

i Having considered the entire record in this case, including the relevant documents, the testimony of the witnesses who appeared before me, the videotaped testimony of the NRC employee and, in particular, claimant's demeanor at the hearing, I find that his version of events is simply not believable, llasan v. NPSI, Docket No. 06-ERA-24, slip op. at 3, (Oct. 21, 1984). 12/ Thus, Petitioners' allegations are promised on the arguments of counsel and on the testimony of a witness who was

'detc.. mined to be without credibility.

Thus, it is clear that the concerns raised by Petitioners could not have any direct safety significance. The Commission should not reopen this proceeding to litigate these ancient and resolved allegations.

3. Petitioners Have Hot Demonstrated That The Matters Would Have Caused The Board Not To Dismiss The Ercceedings In order to reopen the record, Petitioners must also demonstrate that "a different result would be or would have beer.

likely had the newly proffered evidence been considered initially." 10 C.F.R. $ 2.734(a)(3) (1991). When the motion to reopen the record is not related to a litigated issue, the effect of the proffered evidence cannot be measured against the Board's decision on a particular issue, but must be viewed against the effect on the outcome of t!.e , oceeding. Lang_ Island Lighting Ca (Shoreham Nuclear Power Station, Unit 1), LBP-03-30, 17 N.R.C. 1132, 1142 (1983) (citing yermont Yankee Nuclear _EnHer 12/ This order was affirmed by the Secretary of Labor in a

" Final Decision and Order" (June 26, 1991). The Secretary's decisior. has been appealed to the U.S. Court of Appeals.

Corp (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 523 (1973)).

The matters Petitionsrs seek to introduce into the record would not have caused the Board to reject the settlement of the proceedings. Petitioners' allegations concerning Mr.

Macktal's settlement with Brown & Root and " perjury" in Mr.

Hasan's DOL proceeding and before the ASLB are similar to the allegations raised by CTUR and Mr. Burnam. CFUR and Mr. Burnam

_ presented these allegations to the Board and the Commission years ago. The allegations were not a sufficient basis for reopening the hearings then, and they are not a sufficient basis now.

Similarly, Mr. Hasan's concerns about pipe supports were presented to the Board in May of 1988 13/ These allegations also were not sufficient to block dismissal of the proceedings.

Mr. Macktal and Mr. Hasan's safety concerns were also fully investigated by the NRC Staff and were found to raise no safety concern AA/. Additionally, the Commission concluded that Mr. Macktal's agreement with Brown & Root does not constitute grounds for a hearing. The Courts have upheld the Commission's determination. Egg citirens For Fair utility Begulation v. NRC, 898 P.2d 51 (5th Cir.), cert denied, 111 S.

Ct. 246 (1990). See also, Eacktal v. NRC, Docket No. 89-1034, (D.C. Cir.-June 11, 1990).

13/ See Section D.2, infra.

11/ CLI-88-12, 28 N.R.C. 605.

l

. Finally, Mr. Hasan's concerns about the criteria used f by the three pipe support design organizations at Comanche Peak l were resolved by TU Electric's Corrective Action Program. Any l dispute over testimony before the DOL is proporly before that-l tribunal, and any claim regarding TU Electric's witnesses or the j conduct of counsel for the Licensee or the NRC Staff in this proceeding is based upon unsubstantiated lawyer's argumants and on the statements of-a witness who was found to be without credibility. Additionally, as discussed below, these claims are utterly-without merit. Thus, these allegations-would not have caused the ASLB to reach a different result.

E. Petitioners' Claims That TU Elwetric Engaged In Perjury _ Are_ Utteriv Withnut_Marit Petitioners allege that TU Electric committed perjury and submitted material false statements to the ASLB from 1982 to 1985, because 1) different or multiple sets-of design-criteria were used to certify individual pipe supports subject to field changes, and 2) the responsibility for the design of field changes for pipe supports was transferred from one pipe support design group to another group. (Motion at 4-6.)- While it-is unnecessary for the Commission to reach these scurrilous allegations in order to decide this matter, these charges are so patently without merit-that_they cannot go unanswered on the record.

-Initially, there was only a single pipe support design group at CPSES. In order-to maintain schedule, TU' Electric

decided to utilize two additional pipe support design groups and to divido the dosign responsibility for pipo supports among the groups. As a result, during the early 1980's, there were three separato pipe support design groups at CPSES. Each group was responsible for certifying the design of particular supports.

Additionally, the pipe support design group that performed the '

original design would, in general, review and cortify field changes to its designs. In a relatively few casos, design responsibility for a pipe support was transferred from one design group _to another group, which then becamo responsible for performing the calculations for and cortifying the design of the t

entire support. However, at any particular time (including final certification), only one group had responsibility for cortifying the dos'ign of any individual support (including the review of its field changes).

Contrary to the Petitioners' allegation, different or multiple sets of design criteria were not used to certify an individual pipe support. Each group was required to comply with the governing provisions of the ASME Code and Project Specification MS-46A, but was permitted to achieve compliance with these provisions by using its own methodology (which some witnesses called " design criteria," and still other witnesses and the ASLB called " design approaches"). Therefore, even though the design methodologies differed from group to group, only the methodology of the responsible design group was used in certifying an individual support. The ASLB in the CPSES OL

proceeding acknowledged this situation and found it to be acceptanle, and there is nothing cited by the Pe;itioners which is inconsistent with the ASLB's findings. 15/

Petitioners' allegation relatea to the transfer of design responsibility is similarly misplaced. Such transfers were explicitly authorized by 10 C.F.R. Part 50, Appendix B, Criterion III and ANSI N45.2.11. In particular, Criterion III of Appendix B states that "[dlesign changes, including field changes, shal) be subject to design control measures commensurate with those applied to the original design and be approved by the organization that performed the original design uniens the applicant designates another responsible organization."

10 C.F.R. Part 50, app. B (1991) (emphasis added).

Some passages in TU Electric's testimony and affidavits before the ASLB stated the. *he review and certification of field changes would be performed . *ho " original design organization;"

other passages stated that the review and certificatio:. would be perform:d by the " responsible design organization." in/ '

l 15/ Texas Utilities Generating C02 (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-81, 18 N.R.C. 1410, 1450-51 (1903); Applicants' Exhibit 142 at 9; Staff Exhibit 207 at 12-13; Tr. 5014, 5279.

l 11/ Ege, e.g., Applicants' Exhibit 142 at 34-35; (Tr. 4954, l 4957-58); Affidavit of John C. Finneran, Jr., Regarding l Stability of Pipe Supports and Piping Systems (June 17, 1984) at 14, 23; Affidavit of D.N. Chapman, J.C. Finneran, Jr., D.E. Powers, R.P. Deubler, R,E. Ballard, Jr., and A.T.

, Parker Regarding Quality Assuranc(: Program for Design of l Piping and Pipe Supports for Conaache Peak Steam Electric L Station (July 3, 1984) at 51. Additionally, in other cases, l TU Electric stated that the review of field changes would be (continued...)

l

i Petitioners imply that the use of the term a original design organization" is inconsistent with the fact that design responsibility for the entire support was on occasion transferred from one design group to another. However, the subject and purpose of the testimony was to clarify that field design chwages were always approved by the desigr. organization responsible for ,

the entire design. There was no statement or indication that design responsibility had not been or was forever prohibited from being transferred from one design group to another. Thus, the i Petitioners clearly take testimeny out of context and improperly claim that TU Electric witnesses were addressing subjects that were not even at issue-at tne time the ststements were made.

The issues before the ASLB primarily involved the adequacy of the iterative design process for pipe supports. In this particular instance, the-ASLB was concerned with whether changes authorizea by_ field engineering (which was not a design organization)_were subject to review and certification by a '

. responsible _ pipe support-design group to ensure that Lny deficiencies introduced by the field changes would~be identified and corrected. To address-this issue, TU Electric pre 2er:od testjaony and affidavits which stated that_fie'Ad changes would be reviewed and approved by the responsible design group. It was in this context that TU ElectricLwitnesses stated that changes authorized by field engineers were subject to review and 11/(... continued) performed by.the " proper design organization." (Tr. 5184,

-5185-86.-)

gesw 'm ur%P"F D n &dW'NF'""**7"'M" '" T#

/

certification by the original design organization. These statements paraphrased the language in Appendix B, ANSI N45.2.11, and the CPSES design control procedures, and they accuratriy reflected that design groups (and not field engineers) were being used for certification of pipe supports at CPSES. Furthermore, TU Electric witnesses were never asked to discuss matters related to the transfer of design responsibility of individual supports, and never claimed that transfers of design responsibility had not occurred. Thus, there was no reason to discuss particular instances of such transfers since the ASLB was aware that the general scope of responsibility of the three design groups had changed over time.

Therefore, TU Electric's statements were entirely appropriate and directed to the issue in question before the ASLB. The transfer of design responsibility from one design group to another design group was not-the issue, or material to the issue, being decided by the ASLB. Thus, Petitioners

• allegations that TU Electric committed perjury and submitted

" material false statements" are clearly in error, and Petitioners-should be admonished for making such irresponsible ellegations. 12/

A1/ -Under S 2.713(c), a party or its representative may be reprimanded, censured, or suspended from a proceeding for engaging.in " disorderly, disruptive, or contemptuous l conduct." 10 C.F.R. S 2.713(c)(1991). Petitioners'

, allegations of perjury in this case are sanctionable under E this provision. See, e.g., Houston Lighting & Power Co.

I (South Texas Project, Units 1 and 2), LBP-85-45, 22 N.R.C.

819, 827-829 (1985)(the ASLB has authority to issue (continued...)

p ,

l.

CQRCLUSION Accordingly, for the foregoing reasons, Licensee respectfully requests that Petitioners' motion to reopen be summarily denied because: (1) a motion to reopen is inappropriate in this case; (2) Petitioners are not a party to these proceedings; (3) Petitioners have made no attempt to make a f acial showing of their rights to intervene under 10 C.F.R. S 2.714; and (4) the motion fails to satisfy any of the requirements to reopen the record under 10 C.F.R. S 2.734(a).

The Commission should find that this motion is frivolous Lnd should direct the motion to the Secretary with instructions to summarily dismiss the motion.

Respectfully submit .d, J

k1 George L. Edgtr 0

Steven P. Frantz Steve A. Linick Newman & Holtzinger, P.C.

Suite 1000 1615 L Street, N.W.

Washington, D.C. 20036 (202) 955-6600 Attorneys for Texas Utilities Electric Ccmpany Co-Counsel Robert A. Woolridge, Esq.

Worsham, Forsythe, Sampels

& Wooldridge 2001 Bryan Tower, Suite 3200 Dallas, Texas 75201 Dated: December 2, 1991 12/(... continued)

Ennetions against a party that makes unfounded and reckless allegations of perjury).

__ . _ _ __ _ ._ ~ _ . -. - _.

U u i0 l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g) DEC ~4 E 4 gg REFORE THE CQBMISSION

(;r.tg[.ff,h[hlNf ud p un"

) Docket Mos. 50-445-OL In~the Matter of ) 50-446-OL

)

TEXAS UTILITIES ELECTRIC

)

COMPANY- )

)

)

(Comanche Peak Steam Electric )

Station, Units I and 2 )

)

)

)

CERTIF_ICATE OP EERVICE I hereby certify that copies of " Licensee's Answer to the Motion to Reopen the Record By Micky Dow and Sandra Long Dow" and the_ attached " Notices of Appearatice of Counsel"'were served upon-the-following persons by deposit in the United States mail, postage prepaid and properly addrassed, on the date shown below:

Chairman Ivan Selin U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Kenneth C. Rogers U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner James R. Curtiss U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner E. Gall-de Planque U.S. Nuclear Regulatory Commission

? Washington, D.C. 20555 Commissioner Forrest J. Remick U.S. Nuclear Regulatory Commission Washington, D.C. 20555

t 3

l Janice Moore, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn Chief, Docketing Service Section (Original plus two copies)

R. Mickey Dow Sandra Long Dow 1070 Wellington, #135 Ottawa, Ontario KIY-2Y3 Charles E. Mullins, Esq.

Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dated this 2nd day of December, 1991 /

s Stefen A. iinick

~

Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 (202) 955-6822

I i Let;iD UNITED STATES OP AMERICA NUCLEAR REGULATORY COMMISSION 11EPORE THE COMMISSION pc a pi rt iAD In the Matter of

) 'buc$i i

~

j ' E

)

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445 COMPANY ) 50-446

)

(Comanche Peak Steam Ulectric )

Station, Units 1 &2 )

)

NOTICE OP APPEARANCE OF COUNSEL Notice is hereby given that Steve A. Linick enters an appearance as counsel for Texas Utilities Electric Company in the above-captioned proceeding.

Name: Steve A. Linick Address: Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 Telephones (202) 955-6600 Admissions: District of Columbia Name of Party: Texas Utilities Electric Company Skyway Tower 400 North Olive Street Dallas, TX 75201 Steve A. Linick Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 Date: December 2, 1991

1 L. i ;Lr,(:!i D udNi?.C UNITED STATES OF AMERICA l

NUCJEAR REGULATORY COMMISSION

-BEPORE THE COMMISSION

) hf i(hi -

In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445 COMPANY ) 50-446

)

(Comanche Peak Steam Electric )

Station, Units 1 &2 )

. _)

NOTICE OP APPEARANCP OP COUNSEL Notice is hereby given that Steven P. Frantz enters an appearance as counsel for Texas Utilities Electric Company in the above-captioned proceeding.

Name: St.even P. Frantz Address: Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 Telephones (202) 955-6600 Admissions: District of Columbia Name of Party: Texas Utilities Electric Company Skyway Tower 400 North Olive Street Dallas, TX 75201 44 Steven P. Frantz fj/

Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 Date: December 2, 1991

_ _ _ _ . _