ML20079N723

Answer to Governor Deukmejian 840109 Petition for Review of ALAB-756 Re Const Qa.Aslab Assessment of Applicability of App B Correct.Petition Should Be Denied.Certificate of Svc Encl

ML20079N723
Person / Time
Site:	Diablo Canyon
Issue date:	01/26/1984
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	NRC COMMISSION (OCM)
References
ALAB-756, NUDOCS 8401300314
Download: ML20079N723 (14)

Text

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                                                                    '84 J5N 27 N1 :44 1                           UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSi k j, ,E[/ -

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BEFORE THE COMMISSION 3 4 In the Matter of )

                                                       )         Do cke t Nos . 50-275 5     PACIFIC GAS AND ELECTRIC          )                             50-323 COMPANY (Diablo Canyon Nuclear )

6 Power Plant, Units 1 and 2) ) Construction Quality

                                                       )         Assurance 7

8 , ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY TO PETITION FOR REVIEW OF ALABy756 9 FILED BY GOVERNOR DEUKMEJIAN N 10 I. INTRODUCTION d 3 5 8 11 On July 19-21, 1983 an evidentiary hearing was o" 5c$jn "j g6~ m 12 held in San Luis Obispo, California before an Atomic Safety and jjE~{,@ 13 Licensing Appeal Board to consider materials issued in support M802E g" DES 14 of and opposition to motions to reopen the record in this pro-i O f 15 coeding on construction quality assurance ("CQA"). On August 4, o 16 1983, the parties filed brief s regarding the applicable 17 standards for reopening closed hearing records. On September 9, 18 1983, the Joint Intervenors filed a document styled " Supplement 19 to Motion to Reopen the Record on Construction Quality 20 Assurance" which centered on an audit of Pullmsn Power Products 21 Corp conducted by Nuclear Services Corporation (NSC) in 1977. 22 Pacific Gas and Electric Company (PGandE) filed its answer to 23 24 1 Contemporaneously with the filing of PGandE's Answer to the 25 Petition of Governor Deukmejian , PGandEe has filed a separate answer to the Petition for Review of ALAB-756 filed by Joint 26 Intervenors which PGandE incorporates herein by reference. 8401300314 840126 -

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1 the supplement on Septembe r 21- 1983. On Oc tobe r 2 4, 1983, the 2 Appeal Board issued an order denying the motions to reopen the 3 record s tating that an opinion setting forth their views on the 4 motions would be forthcoming. On Octobe r 31, 19 8 3, Join t 5 Interve nors filed a Petition for Review of the Appeal Board's 6 order. In an order dated November 8, 1983 (CLI-83-27) the 7 Commission declined to rule on the Joint Interve nors ' petition 8 until issuance of the Appeal Board's opinion and the parties' 9 substantive responses thereto (Order at 9) . The Appeal Board 's 9 10 opinion (ALAB-756) was issued December 19, 1983.2 The Governor i i 11 and Joint Intervenors filed Petitions for Review of the Appeal 5e*fj.

  *f NE         12   Board decision dated January 9, 1984.3 5    n EU2{E an   . -      13                                II. ARGUMENT a
  $"gogg dE8      14   1. The Appeal Board Correctly Applied the Wolf Creek Standard.

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E 15 T'a e proponents of a motion to reopen the record in a 16 licensing procecding carry "a heavy burden." Kansas Gas and 17 Electric Co. (Wolf Creek Generating Station, Unit No.1) , ALAB-18 462, 7 NRC 320, 338 (1978). To prevail, l 19 " [t]he motion must be both timely presented and addressed to a significant safety or 20 environmental issue. Vermont Yankee Nuclear 21 2 The opinion also disposes of the Joint In terve nors' supple-23 ment to their motion to reopen. (Opinion, fn. 35.) 24 The Governor's peitition was mailed January 11, 1984 pursuant to arrangements with the Secretary of the Commission. The 25 Secretary of the Commission gave the staf f and PGandE until January 26, 1984 within which to file answers to both 26 pe titions . (Chandle r letter dated January 16, 1984).

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s' 1 Power Corp. (Vermont Yankee Nucleac Power Station), ALAB-138, 6 AEC 520, 523 (1973); 2 . . . Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 3 NRC 4 04, 4 09 (1975). Beyond that, it must be established that 'a dif ferent result 4 would have been reached initially had [the material submittted in support of the 5 motion) be en cons ide red . ' Northern Indiana Public Service Co. (Bailly Generating 6 S tation , Nucle ar-1) , ALAB-2 27, 8 AEC 416, 418 (1974). 7 , s Contrary to movant's claim that the Appeal Board 9 established a new standard for reopening, the Appeal Board set d 10 forth a standard to be applied when the claimed significant i w

  $       $       11  safety factor is an alleged breakdown in the quality assurance 5c o"

{ $f f 12 program of an applicant and/or licensee. This standard is not

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13 novel as it has been utilized by another Appeal Board in an . x'E

  =80 j aeis         14   response to the same type of challenge.               See , Union Electric Co.

i o y E 15 (Callaway Plant, Unit 1), ALAB-740, 18 NRC ,

                -16   (September 14, 1983).

17 The safety significance of the evidence to be. con-18 sidered on a motion to reopen is a primary consideration. See, 19 Consumers Power Company (Midland Plant, Units 1 and 2) LBP ! 20 50, 18 NRC 242 (1983). Bare allegations or simple submission of 21 new contentions is not sufficient. Only significant new 22 evidence requires reope ning . The parties are required to make 23 the initial case that significant new evidence .is available, not 24 merely make claims to tha't ef fect. Pacific Gas and 25 Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 26 a nd 2 ) , C L I 5 , 13 NRC 361,. 36 3 (19 81) . If the moving party

1 cannot establish any safety signficance to the improper 2- practice, there is no purpose to reopening the record for a 3 f urther hearing. Where the allegations that the safety 4 violations have no safety significance remain unrebutted by the 5 moving party, that party has failed to meet the heavy burden 6 necessary to reopen a closed record. See, South Carolina 7 Electric and Gas Co., et al. (Virgil C. Summer Nuclear Station, 8 Unit 1), L Ws 02-84, 16 NRC 1183, 1185 (1982). In this case 9 neither the Joint Intervenors nor the Governor have presented S 10 any evidence rebutting that presented by both PGandE and the a <

 $     $    11   Staf f which es tablished that the alleged deficiencies are of no 2c**
 *j${       12   safety significance.

go~wn MW5js 13 The Appeal Board's decision was correct in the partic-EdgS

 $aegs g          14   ular circumstances of this case. Ordinarily, one need only i     O f    15   apply the Wolf Creek standard to test the suf ficiency of a o

16 motion to reopen. However, where, as in this case, a matter is l 17 originally uncontes ted and a party seeks to reopen that issue, l 18 the party must satisfy not only the standard to reopen but also 19 the standard for late-filed contentions. Pacific Gas and_ 20 Electric Company (Diablo Canyon Nuslear Power Plant, Units 1 l 21 a nd 2 ) , CLI-82-39, 16 NRC 1712, 1714-15 (1982). , 22 Pursuant to 10 C.F.R. S 2.714(a)(1), in order for a l 23 late filed contention to be admitted in a proceeding the 24 proponent must establish,' 25 "(i) Good cause , if any, for f ailure to l file on time. 26 1 (ii) The availablity of other means whereby the petitioner's interest will be 2 protected. 3 (iii) The extent to which the petitioner's participation may reasonably be 4 expected to assist in developing a sound re co rd . 5 (iv) The extent to which the 6 pe titione r's interest will be represented by existing parties. 7 (v) The extent to which the 8 petitioner's participation will broaden the issues or delay the proceeding." 9 8 10 Neither the Governor nor the Joint Intervenors attempted to make a $ 11 any showing as required by 10 CFR S 2.714 on the issue of CQA. e" Ec$zj. j 12 A review of the Licensing Board decisions in these [6-SA g Eej{s 13 proceedings reveals that the question of CQA, a nd , for that d ad A h2eg$ 14 matter, quality assurance, was not contested by any party to the $ 0 S E 15 proceeding. Pacific Gas and Electric Company (Diablo Canyon O

• Nuclear Power Plant, Units 1 and 2) LBP-81-21, 14 NRC 107, 115 16 17 (1981). See, Pacific Gas and Electric Company (Diablo Canyon 18 Nuclear Power Plant, Units 1 and 2) LBP-82-70, 16 NRC 756, 7 62 19 (1982). Since the matter was rancontes ted the movants must meet 20 the standards for late-filed contentions as well as those for 21 Opening a closed record. Having f ailed to satisfy either 22 standard, the Petition for Review must be denied.

23 2. The Procedure Utilized by the Appeal Board was Proper. 24 In their Petiti'on for Review, counsel for the Governor 25 obj ect to the Appeal Board 's utilization of the evidentiary 26 hearing to assist it in rendering its decision on the Motion to I l

1 Re ope n. Curiously, this is the firs t time movants have raised 2 this objection in these proceedings. In fact, counsel for the 3 . Governor looked favorably upon this procedure prior to the 4 Appeal Board 's decision. See, Post-Hearing Brief of Governor

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5 Deukmejian in Support of his Motion to Reopen the Record on CQA, 6 at p. 9, fn. 1. Since this objection was not raised by counsel 7 before the Appeal Board, the Commission should not grant review 8 on this issue. 10 CFR S 2.78 6(4)(ii) . 9 Assuming, arguendo, that the Commission chooses to d 10 consider the challenge tc the Appeal Board's hearing procedure , i j

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 $              11  that complaint should be rejected for additional reasons.                                                                       The Ee     m 12  procedure utilized by the Appeal, Board provided a far greater

{ j{ Ee5~n{ 13 opportunity for Governor's counsel to present evidence in a M80 ~ x'.{ E g" DES 14 support of his Motion to Reopen than would ordinarily be i o f 15 available. In fact, a hearing is not required by the 16 Regulations . 10 CFR S 2.73 0. Rather than being " hamstrung", as 17 Governor's counsel would lead the Commission to believe, the l 18 hearing gave him a much greater opportunity than under ordinary l 19 circumstances to meet the heavy burden required to reopen a 20 closed hearing record. 21 While counsel for the Governor complains bitterly that 22 the procedure prevented him from conducting effective discovery, 23 he f ails to point out the advantages he gained beyond those 24 normally provided in the ' regulations for reopening closed 25 records. Unde r ordinary circumstances, discovery for the 26 purpose of a motion to reopen is available only if the movant _ _ _ . _ _ _ . - . _ , _ _ . . _ . - , _ . . . . _ . _ _ _ _ . . . . _ _ . _ _ _ _ _ _ _ _ _ _.___2______,

c e 1 feels he is unable to controve rt the filings of the opposing 2 party. See, Vermont Yankee Nuclear Power Corp. ( Ve rmon t Yanke e 3 Nuclear Power Station), ALAB-138, 6 AEC 520 (1973); 10 CFR 4 2.719(c). Of course , the movant claiming inability to 5 controve rt the filings has the burden of demonstrating with 6 particularity that discovery would enable it to produce such 7 materials. Vermont Yankee , supra at 5 24. Movants requested no 8 such discovery in this case, and made no such argument, le t 9 alone showing , before the Appeal Board. S 10 The Appeal Board , sua sponte , took steps to develop i ~

 $    $     11    evide nce to assist the Board in making its decision.      Fo r e

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2A 12 example , the Board ordered the staf f to produce all inspection

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13 reports relating to COA from the beginning of the project until lk[fh 1 i o 14 the date of the hearing. It permitted each party to subpoena , S E 15 witnes ses to the hearing , to introduce evidence , and to cross- ! o

• Appeal Board Order of June l 16 examine all affiants and witnesses.

17 28, 1983, unp ublis hed . 18 Finally, counsel for the Governor complains about the 19 Board's reliance on information produced af ter the hearing to 20 support its decision not to reopen. The weakness in this 21 position is obvious. The information relied upon by the Board 22 was produced in response to issues raised af ter the hearing by 23 the Intervenors . While Governor's counsel asks the Board to 24 reopen on the basis of the 1977 NSC audit of Pullman which was 25 filed af ter the hearing , he insists that any responses regarding 26 that audit filed af ter the hearings not be considered by the 1 Boa rd . During the course of argument, Governor's counsel 2 blithely moves from the position that the granting of the 3' hearing was imprope r to the position that the hearing was 4 necessary to consider the late-filed materials. The fact remains 5 that the Board dealt with the late-filed materials in the manner 6 in which it would deal with any motion to reopen; namely, it 7 cons ide red the materials and the responses thereto without the 8 benefit of oral testimony. 9 3. The Parties Are Now Precluded from Challenging the FSAR. N 10 Governor's counsel argues that because PGandE only n w

 $         $     11    conmitted to 10 CFR Part 50, Appendix B "to the extent t   E s*

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12 practicable" for Unit 1, the record must be reopened for

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AWE ~n an .-{E 13 conside ration of CQA. Counsel for the Governor once again 580RE gadES 14 totally ignores several portions of the standards applicable to i O S E 15 motions to reopen and late-filed contentions. Foremost among

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16 tha tests ignored by counsel is the requirement that evidence l 17 prof fered must be new evidence. PGandE committed to 10 CFR Part 18 50, Appendix B, as it would apply to Unit 1, "to the extent l 19 possible considering the status of the design and construction ! 20 at that time." FSAR, Diablo Canyon Units 1 and 2, ch. 17, p. l 21 17.0-1. 22 The above-quoted language in the FSAR was issued on 23 Septembe r 28, 1973, almos t 10 years prior to the Motions to 24 Reopen on CQA. The langu' age has never changed. At the time of 25 the FSAR issuance , the Governor was not a party to this 26 proceeding, but, when he did become a party in 1980, he was 1 forwarned that he was taking the proceedings as he found them. 2 Pacific Gas and Electric ( Diablo Canyon Nuclear Power Plant, 3 Uni ts 1 a nd 2) , ALA B-58 3, 11 NRC 447, 448 (1980). Counsel's own 4 e xpe rt , Richard Hubbard , professed familiarity with Chapter 17 5 o f the FS AR as fa r back as Oc tobe r of 19 77. See, Limited 6 Appearance Statement of Richard Hubbard before ASLAB, Octobe r 7 18, 1977. As Mr. Hubba rd was the expe rt for Joint Intervenors 8 at that time neither of the movants can argue that the language 9 of the FS AR is in any manner "new evidence". d 10 Counsel for the Governor also claims that this failure d <

 %       $    11   to commit unconditionally to Appendix B renders the entire con-s*
 *$               struction of Unit 1 suspect.

E e${ w 12 Again counsel has not satisfied g6 Me ~3 E{ e 13 the f undamental tes t for. a motion to reopen. The argument musc y Ed x'S ga aE2 14 fail without any evidence, let alone new evidence, of safety i o y E 15 s ignificance to support the bare allegations of counsel. 16

4. The Appeal Board Properly Applied 10 CFR Part 50 Appendix B 17 to DCNPP Unit 1. -

18 The Appeal Board found that the language contained in 19 the Statement of Considerations accompanying the final version l 20 of Appendix B, to the ef fect that the criteria'would be "used for 21 g uidance in evaluating the adequacy of the quality assurance ! 22 programs in use by holders of construction permits and operating 23 lice ns es " , did not require conformance of PGandE's CQA Program 24 for Unit 1 to Appendix B 'upon the provision's ef fective date. 25 The Governor asserts that the Board was incorrect in this 26 assessment of the applicability of Appendix B. l

1 Tne first proposal of Appendix B (34 Fed. Reg. No. 73, 2 pp. 6599, 6600), the actual regulation as adopted (35 Fed. Reg. 3~ No. 125, pp. 10 49 8, 10499) and the current regulation as written 4 make it clear that the Appeal Board was correct in its 5 assessment of the applicability of Appendix B. In both the 6 proposal statement and the Statement of Consideration, the 7 language cited by the Board is set fo rth . However, f rom the 8 first proposal of Appendix B to today's version, the regulation 9 itself has contained the following language: N 10 "While the term ' applicant' is used in these d , criteria, the requirements are, of course, $ $ 11 applicable af ter such a person has received

        .                      a license to construct and operate a nuclear Eeg"$3
   $$      12                  power plant. These criteria will also be

[g 6: 24 used for guidance in evaluating the adequacy We5{E 13 of quality assurance programs in use by gQogg holders of construction permits and operat-gadE2 14 ing licenses." 10 CFR Part 50 Appendix B, 2 o fn. 1. 2 f 15 o 16 Thus, contrary to the assertions of the Governor, it is quite 17 clear the Appeal Board's assessment of the applicability of 18 Appendix B to an existing facility is correct. 19 III. CONCLUSION 20 The Petition for Review of ALAB-756 by Governor 21 Deukmej ian must be de nied. The petition does not raisa, 22 . . . 23 . . . 24 . . . 25 . . . 26 . . .

• I 9

1 collectively, or individually, any matters suf ficient to grant 2 review under S 2.78 6 ( b) ( 4) ( i) of the Commission's regulations. 3 Respectf ully submitted, 4 ROBERT OHLBACH PHILIP A. CRANE, JR. 5 RICHARD F. LOCKE Pacific Gas and Electric Company 6 P. O. Box 7442 San Fraticisco, CA 94120 7 (415) 781-4211 8 ARTHUR C. GEHR Snell & Wilmer 9 3100 valley Bank Center Phoenix, AZ 85073 d 10 (602) 257-7288 i , y g 11 BRUCE NORTON W THOMAS A. SCARDUZIO, JR.

   $"$=<3    12                                       Nor ton , Burke , Berry & French, P.C.

g Sk2 P. O. Box 10569

   *ajg2     13                                       Phoenix, AZ     85064 a gd ,a Mo xo                                              (602) 955-2446
 'g"sES

• 14 Attorneys for >

g a 15 Pacific Gas and Electric Company a 16  % l Bruce Norton i Dated January 26, 1984 l 19 l 20

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DOCKETEC UStPC UNITED STATES OF AMERICA '84 JAN 27 SllI44

                                 . NUCLEAR REGULATORY COMMISSION                                 ,j7 g g g,;g ,,
       '                                                                                         00CKETmG & SEP C In the Matter of                         )                                                 BRANCH
                                                     )

PACIFIC GAS AND ELECTRIC COMPANY ) Docke t No . 50-275

                                                     )                   Docke t No. 50-3 23 Diablo Canyon Nuclear Power               )
   .       Plant, Units 1 and 2                      )
                                                     )

CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Com-pany has (have ) been served today on the following by deposit in the United States mail, properly stamped and addressed: Judge John F. Wolf Mrs. Sandra A. Silve r Chairman 1760 Alisal Stree t Atomic Safety and San Luis Obispo, CA 93401 Licensing Board US Nuclear Regulatory Mr. Gordon Silver Commission 1760 Alisal Street Washing ton, DC 20555 San Luis Obispo, CA 93401 Judge Glenn D. Bright John Phillips , Esq. Atomic Safety and Joel Reynolds, Esq. Licensing Board I Eric Havian , Esq. US Nuclear Regulatory Center for Law in the Commission Public Interest Was hing ton, DC 20 555 10951 W. Pico Blvd. , Ste 300 Los Angeles, CA 90064 Judge Jerry R. Kline Atomic Safety and David F. Fleischaker, Esq. Lice ns ing Boa rd P. O. Box 117 8 US Nuclear Regulatory Oklahoma City, OK 73101 Commission Washing ton , DC 20555 Arthur C. Ge hr , Esq. Snell & Wilmer Mrs. Elizabeth Apfelberg 3100 Valley Bank Center c/o Betsy Umhof fer Phoenix, AZ 85073 1493 Southwood San Luis Obispo, CA 93401 l

Chairman Janice E. Kerr, Esq. Atomic Safety and Public Utilities Commission Licensing Board Panel State of California US Nuclear Regulatory 5 246 State Building Commission 350 McAllister Street Washing ton, DC 20 555 San Francisco, CA 94102

Mrs._ Raye Fleming 1920 Mattie Road Mr. Frederick Eissler Shell Beach, CA 93449 Scenic Shoreline Preservation Conf e rence , Inc.

Chairman 4623 More Mesa Drive Atomic Safety and Santa Barbara, CA 93105 Licensing Appeal Panel US Nuclear Regulatory Judge Thomas S. Moore Commission Chairman Washing ton, DC 20555 Atomic Safety and Licensing Appeal Board . Se cretary US Nuclear Regulatory Commission US Nuclear Regulatory Washing ton , DC 20555 ' Commission

.         Washington, DC 20555             Judge W. Reed Johnson ATTN: Docketing and              Atomic Safety and Licensing Service Section                 Appeal Board US Nuclear Regulatory Commission Lawrence J. Chandler , Esq.      Washington, DC 20555 He nry J. . McGurren , Esq.

US Nuclear Regulatory Judge John H. Buck Commission Atomic Safety and Licensing Of fice of Executive Legal Appeal Board Director US Nuclear Regulatory Commission p Washington,_ DC 20555 Washington, DC 20555 ! Mr. Richard B. Hubba rd Commissioner Nunzio J. Falladino* , MHB Technical Associates Chairman 1723 Hamilton Ave, Ste K US Nuclear Regulatory Commission p San Jose, CA 95125 1717 H Street NW Washi ngton, DC 20 555 Mr. Carl Neiberger i Telegram Tribune Commissioner Frederick M. Bernthal L P. O. Box 112 US Nuclear Regulatory Commission San Luis Obispo, CA 93402 1717 H Street NW Washington, DC 20555

Michael J. Strumwasser, Esq.

Susan L. Durbin, Esq. Commissioner Victor Gilinsky Peter H. Kaufman, Esq. US Nuclear Regulatory Commission 3580 Wilshire Blvd.' 1717 H Street NW Suite 800 Was hing ton , DC 20 555

      . Los Angeles, CA 90010 Maurice Axelrad, Esq.             Commissioner James K. Asselstine Lowens tein, Newman, Reis          US Nuclear Regulatory Commission and Axelrad, P.C.                1717 H Street NW
     . 10 25- Connecticut Ave. NW         Washington, DC 20555 Washington, DC 20036 Commis'sioner Thomas M. Robe rts US Nuclear Regula tory
 ~

Commission 1717 H Street NW Washing ton, DC 20 555 DATE \  % gl't%t{ hb 1 ( w

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