ML20235R594

NRC Staff Response to Applicant Motion for Establishment of Schedule.* NRC Staff Proposal for Litigation Schedule & Certificate of Svc Encl

ML20235R594
Person / Time
Site:	Comanche Peak
Issue date:	10/02/1987
From:	Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
CON-#487-4549 OL, NUDOCS 8710080118
Download: ML20235R594 (17)

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Octobef$, @8N UNITED STATES OF AMERICA r NUCLEAR REGULATORY COMMISSION fgcg1gy-5 tsty f; hrkytCL Bf3HCH

. . BEFORE THE ATOMIC SAFETY AND LICENSING BOARD y

in the Matter of ')

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET AL. ) 50-446-O L

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(Comanche Peak Steam Electric - )

Station, Units 1 and 2) )

NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR ESTABLISHMENT OF SCHEDULE I. INTRODUCTION On August 20, 1987, Applicants filed a " Motion for Establishment of

. Schedule" (" Scheduling Motion"). Attached to the Scheduling Motion was a proposed schedule in the form of a timeline, with specific events or actions occuring at designated days calculated from a " trigger date." On l September 28, 1987, CASE filed its Answer to Applicants' August 20, 1987, Motion for Establishment of Schedule, in which CASE proposed its own schedule for litigation in this proceeding. For the reasons set forth below , the Board should adopt the alternative litigation schedule devel-oped by the Staff. II 1/ The Staff's Response to Applicants' Scheduling Motion is filed in accordance with an extension of time originally agreed to by the par-ties , and a further extension granted by the Board in a L

September 23, 1987 conference call.

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il. BACKGROUND fn early 1986, Applicants proposed a schedule for conducting the litigation of the operating license proceeding. Applicants' Motion for Es-tablishment of Schedule (March 21, 1986). At that time , it was contemplated that the primary focus of litigation would be the Applicants' Comanche Peak Review Team ("CPRT") Program; accordingly, the Appil-cants' scheduling proposal was based upon the issuance of Results Re-ports for issue specific action plans ("lSAPs") and discipline specific action plans ("D S APs") . In a number of pleadings and at oral argument, 2/ CASE set forth its concerns that seriatim litigation of results reports would not be fruitful, in part due to the potential that later-issued results reports may affect the validity of earlier reports (the concept of " interdependency"). - CASE also objected to the failure to provide in a timely fashion the documentation underlying the Results Re-ports. CASE Response to Applicants' Motion for Establishment of Sched-ule ( April 7, 1986). The S h ff generally supported the Applicants' proposal, b

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2/ See generally April 22, 1986 Prehearing Conference, Tr. 24,349-24,422; Response to Board Questions (May 5, 1986) and attached Preliminary Analysis of ISAP i.a.4 Agreement Between Drawings and Field Terminations.

-3/ As the initial Results Reports were issued and the Staff began in-specting the implementation of the ISAPs, the Staff also developed similar reservations about the desirability of seriatim iltigation, in part becuase of the possibility of "out of scope" findings from one Results Report having an impact on another Results Report. See NRC Staff Comments on CASE's Response to Board Questions (June 24,1986).

-4/ NRC Response to Applicants' Motion for Establishment of Schedule

( April 10,1986).

. The Licensing Board declined to adopt Applicants' proposed sched-ule, and instead invited CASE to file a proposed iltigation schedule, and I provided an opportunity fer the other parties to comment on CASE's proposal. M On June 30, 1986, CASE filed its Proposed Schedule for j i

Hearings. CASE reiterated its argument that the conceptual adequacy of the CPRT Program Plan itself should be litigated prior to the adequacy of the Program Plan's implementation. CASE also indicated that design mat- l 1

ters should be litigated prior to construction. The Staff's response to CASE's proposal agreed that there should be some conceptual order in litigating the CPRT, but disagreed that CASE's alternative of iltigating design matters first was necessarily the only logical method of ,

proceeding. 6_/ To address the problem of "out of scope findings," Staff proposed that litigation of Results Reports proceed according to "func-tional groupings" and " disciplines." For their part, Applicants opposed CASE's proposed schedule. U Following oral argument on the issues raised by the parties' filings, the Board adopted a schedule whereby discovery on CPRT Program Plan l

conceptual adequacy would be followed by filing of summary disposition j motions by CASE on those aspects of the Program Plan that it wished to ,

1 contest. The Board would then determine whether to go to hearings on l Program Plan adequacy, or to await the results of implementation. The 5_/ Memorandum and Order (Scheduling of Hearings) (June 12, 1986).

6/ NRC Staff Response to CASE's Proposed Schedule for Hearings

( August 4,1986) .

-7/ Applicants' Response to CASE's Proposed Schedule for Hearings (July 30,1986).

... Board also agreed that litigation should proceed by means of groupings of results reports, to avoid the problem of interdependence. Finally, the Board indicated that it would also decide upon appropriate groupings of subjects after " guidance" from the parties. August 19, 1986 Prehearing Conference, Tr. 24,603-604.

As of this time, discovery by CASE against Appilcants on CPRT Pro-gram Plan adequacy has yet to be completed. While the Staff has com-pleted its response to CASE's interrogatories and requests for production of documents, CASE's depositions of the Staff Individuals named in their September 22, 1986 request for depositions regarding SSER 13 have been deferred. 8,/ As a result of the initial CPRT efforts, the Applicants have developed a set of Corrective Action Programs (CAP) which include a complete design validation and/or redesign of all safety-related struc-tures, systems and components, selected reinspection of the construc-tion, reconciliation of the design and construction, and QA/QC oversight of the CAP processes. The CAP efforts have been described in a series of pubile meetings held in March, April and July 1987, as well as in let-ters dated June 25, August 20, August 28, September 8 and September 23, 1987. The Staff is currently reviewing this information to determine whether these' programs are sufficient to ensure that all design j and construction deficiencies are identified and properly corrected, in ,

order to determine whether any additional actions or conditions are neces- j i

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8/ C.f. May 6, 1987 Letter from Robert Gad to the Licensing Board, deferring CASE's depositions of Applicants. While not referring to

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CASE's depositions of Staff personnel, it was Staff counsel's under-standing, after conversations with Mrs. Ellis and Mr. Gad, that dep- I ositions of the Staff would also be deferred.

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. sary to ensure that these programs provide an adequate basis for con-cluding that CPSES complies with all regulatory requirements, and that

~ there is reasonable assurance that it can be operated safely, ill. DISCUSSION A. NRC Staff Concerns with Applicants' Schedule The Staff questions whether Applicants' schedule provides a mean-Ingful and integrated proposal for efficiently completing the litigation in a manner which is fair to all parties. The Applicants' schedule proposes that elements of their corrective action initiatives be divided into two groups; however, there is no explanation as to how these groups were developed , or why it makes sense to divide the issues into these two groups. No conceptual scheme is apparent to the Staff for the particular dissection of issues into the two proposed groupings, indeed, the inclu-sion in Group 1 of "any topic [of the CAP] for which the Project Status Report has been published on or before the date of publication of the last of the reports specifically enumerated in this group," ,rg Applicants' Schedule at 8-9, suggests that Applicants have returned to their 1986 position that reports be litigated as they are issued (albeit in . two groups) .

Even accepting the adequacy of these groupings, other provisions of the proposed schedule are problematic. For example, there is no appar-ent purpose served by hinging litigation on the Applicants' answers to the Board's 14 questions for any results report. Presumably, since the litigation of the various reports identified in the Applicants' proposed l schedule will occur in logical groupings, and because the background l l

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, material for an action plan is being made available to CASE as the reports are issued, there is no apparent reason why litigation must await the

/ ppilcants' answers to the Board's 14 questions. It is also unclear why CIRs are listed as potential " trigger" documents, since it has been represented to the Staff that GIRs are no longer being updated to reflect changes in the Applicants' corrective actions.

Applicants' proposed schedule is also unsatisfactory because the  ;

Staff is given extremely abbreviated periods for completing its review, and the Staff is required to justify why additional time is needed. The abbreviated time for review is of particular concern since the Staff has limited resources for conducting its inspection and review efforts and documenting the Staff's work in written form. Also of concern to the Staff is the Applicants' suggestion that the Staff must seek the Licensing Board's approval to delay issuance of its evaluations of the Applicants' corrective action efforts. Such action would amount to Licensing Board supervision of the Staff in its fulfillment of its independent licensing re-sponsibilities, a role which the Commission, as well as the Appeal Board, have proscribed licensing boards from playing. See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1,2,3 and . 4),

CLl-80-12, 11 NRC 514, 516-17 (1980); Louisiana Power and Light Co.

(Waterford Steam Electric Station, Unit 3), A LA B-812, 22 NRC 5, 56 (1985); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), A LA D-488, 8 NRC 187, 202-208 (1978); see also New England i Power Co. (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271, 279-80 (1978).

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D'. The Staff's Alternative Schedule Applicants have represented that their corrective action programs are nearing completion and that all reports for these programs will be issued by the end of the year. It is, therefore, an appropriate time for the Board and parties to determine what the legal theory of this proceed-ing is, and to decide upon a schedule for litigating any issues-in-con-troversy relating to that theory.

Contention 5, which is the last contention remaining to be litigated in this proceeding, essentially questions the adequacy of the Applicants' QA/QC Program for CPSES to identify and correct construction deficien-cles. Litigation of Contention 5 up to early 1985 was, in essence, a his-torical review of the adequacy of Applicants' QA/QC Program.

Suspension of hearings in early 1985 prevented the parties from complet-ing their evidentiary presentations on that subject. Since that time, Ap-plicants have impicmented a number of corrective action programs in the areas of design, construction, QA/QC and testing, in light of the unfin-Ished record on the historical adequacy of the CPSES QA/QC program, ,

juxtaposed against the Applicants' post-1984 corrective actions, which inter alla changed the structure and staffing of that QA/QC program, and undertook comprehensive programs for design revalidation and hardware inspection, it is clear that a reasonable litigation schedule cannot be adopted until it is determined what legal theory will be relied upon in determining whether there is reasonable assurance that the plant has been designed and constructed such that it can be operated without undue risk to the public health and safety. Should the litigation continue to proceed along a path of determining whether the historical QA/QC program at

. CPSES was adequate? Or should litigation now be focused on whether there is now reasonable assurance, based in large part upon the correc-tive action initiatives of the Applicants? Until this issue is resolved, it is impractical to determine whether a schedule for litigation focuses on the proper subject matters, and sets forth a logical scheme for conducting the hearing.

Applicants' schedule appears to be structured on the second path described above, while CASE wishes to follow the first path -- that is, to continue to litigate the adequacy of the Appilcants' historical QA/QC pro-gram, as evidenced by historical deficiencies. AI in the Staff's view, the remaining litigation in this proceeding should focus on whether Applicants 1

have: (a) successfully identified and corrected all safety-significant defi- 3 ciencies, and (b) taken appropriate steps to preclude recurrence of such 3 deficiencies. See Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983). There is no reason why litigation should focus on the adequacy of the historical QA/QC program. Applicants' corrective action initiatives are intended to provide the information necessary upon ,

l which to base a reasonable assurance finding. Thus, the adequacy of the historical QA/QC program is irrelevant, since the reasonable assurance finding will not be based upon work conducted under the historical pro-gram. Moreover, litigation of the historical QA/QC program is superflu-ous ano inconsistent with the Commission's direction that hearings be conducted in an expeditious manner, consistent with the rights of all 9/

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See CASE's Answer to Applicants' 8/20/87 Motion for Establishment of 5Eedule (September 28, 1987).

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parties. E Even if litigation on the historical QA/QC program were to continue to conclusion and the Board were to find that the QA/QC pro-gram was inadequate, the Applicants are entitled to show that any deficiencies or uncertainties in design or construction attributable to the historical QA/QC program have now been corrected. See Commonwealth Edison Co. (Byron Nuclear Power Station , Units 1 & 2), ALAB-770, 19 NRC 1163, 1168-70 (1984). Thus, litigation would inevitably focus on the Applicants' corrective action initiatives. Since it is apparent that the Applicants have already instituted actions that would otherwise be required if a finding of QA/QC program inadequacy were to have been made by the Board, it makes sense to proceed directly to the evidence of corrective actions undertaken by Applicants, rather than continue the tortuous process of determining whether the historical QA/QC program failed - a process which can only lead back to the Applicants' corrective action initiatives. Accordingly, the Sta ff's alternative schedule (Attachment 1) is based upon litigation of the adequacy of Applicants' corrective actions - not whether the prior QA/QC program at CPSES was adequate.

As suggested in Section 11. above, the Applicants have a variety of programs to identify design and construction deficiencies (principally CPRT cfforts) and to correct those deficiencies (principally CAP efforts),

including a major reorganization, new personnel and improved QA/QC pro-cedures. It would be confusing, at best, to attempt to litigate these pro-

---10/ See Statement of Policy on Conduct of Licensing Proceedings, 46 Fea. R3 28,533 (May 27,1981).

. grams individually without any organizing thread or conceptual scheme.

Previously, the Staff had suggested that conceptual organization could be achieved by having the iltigation focus on " functional groupings" or

" disciplines." That approach is still possible, and is one which the Staff i

continues to embrace. The Staff proposes that litigation be organized i

around the Collective Significance Report and the Project Status Reports  ;

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( PSRs ) . The Staff understands that these reports will summarize the results ' of the corrective action initiatives, explain how generic problems and root causes of problems were identified and corrected, and provide the factual basis for finding that there is reasonable assurance regarding .

the design and construction of CPSES. If this is so, then litigation should focus solely on these reports. There is little to be gained by litigating the individual hardware ISAP Results Reports, the DSAP Result Reports, or the Generic issue Reports (GlRs). Indeed, CASE has stated that it is not interested in litigating the minutiae of the CPRT. See Au-gust 18, 1987 Prehearing Conference, Tr. 24,551-552. It may be pre-sumed that CASE's observation applies with even greater force today, in view of the Applicants' evolution of their corrective action initiatives.

Accordingly, the Staff's proposed schedule focuses litigation on the com-pietion of work and issuance of the Collective Significance Report and the PSRs. b 11/ The Staff's inspection and review of the Applicants' corrective action programs will culminate in reports addressing the adequacy of those programs. Applicants have stated in an August 20, 1987 letter to the Staff that PSRs will identify and describe in detail the resolution of all design and hardware issues for each of eleven disciplines.

(FOOTNOTE CONTINUED ON NEXT PAGE)

Under the Staff's. proposed schedule, litigation commences in Phase I with Applicants' notice to the parties that: (a) a PSR in one of the dis-ciplines such as HVAC or instrumentation and Control, or (b) the Collec-tive Significance Report, is available. Thus, there would be separate, but parallel, litigation paths for each of the PSRs and the Collective Significance Report. Applicants would be required to make available all supporting documentation as of that " trigger date." CASE should not require extensive document discovery in light of this provision. Accord-Ingly, CASE's discovery should be limited to clarifying ambiguities in the Applicants' reports, or otherwise seeking to understand the process utilized in preparing the report.

Once discovery by CASE against Applicants is completed, CASE should be in a position to know what specific conclusions of the PSRs and/or Collective Significance Report they disagree with, and the precise rationale and/or factual basis for their disagreement. Thus, the Staff's schedule requires CASE to specify, in detail, why Applicants' corrective actions, as summarized in the PSRs or the Collective Significance Report, did not adequately identify, correct and preclude from recurring any spe-cific problems which CASE claims existed at CPSES, in design, construc-tion or QA/QC. It is not sufficient for CASE to present a listing of design or construction deficiencies; rather, CASE must specify:

I (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

Accordingly, the Staff's reports on the corrective action program will follow the issuance of the PSRs. In addition, the Staff will issue a report evaluating the Collective Significance Report.

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(a) that the underlying problem was not identified and ad-dressed by Applicants, as referenced in the FSRs or the Collective Significance Report.

(b) that potential deficiencies attributable to the underlying problem, which may have occurred in other areas, were not identified - and corrected, or otherwise made moot. -

CASE must also provide a direct citation to these reports, or some other record, which supports its contention. This is entirely fair, since CASE will have had access (in some cases, since early 1986) to all the documen-tation which. ultimately' underlies the Project Status Reports and the Coi- .

lective Significance Report. -

Appilcants and Staff would then file a rasponse to the issues spect i  ;

fled by CASE. Such responses would not involve evidentiary chaltersges, f f k

but rather would focus on whether the proposed issue is proper for J, ' >

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, s litigation.

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Phase 11, which could overlap with Phase I, starts with issum.ce of a _

Staff evaluation report on an Individual PSR or f the Collective {,lon{fi-cance Report. Similar to Phase 1,. the Staff ivould n.al<e available 'all i '

supporting documentation regarding' the evaluation repEt and ' discovery y \

would be limited to clarifications of the Staff report. . , , ,

Since Phase I and il can overlap, the start of Phase ill is dependent upon the last day that discovery agWo.st Sta6"\is completed,, or that the Licensing Board issues an order In' Phase i detaliing what issuest are to be litigated. Hearings would begin 60 days after that c' ate. / ,

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, IV. CONCLUSION For the reasons set forth above, the Board should adopt the sched-ule proposed by the Staff.

Respectfully submitted, Ceary S. Mizuno Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of October,1987 l

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s ATTACHMENT 1 NRC STAFF PROPO6AL FOR LITIGATION SCHEDULE Day- Event PHASE 1.

1 (Trigger Notice by Applicants'that any one of the following reports Date) ' are issued, and that sli underlying documentation relevant to that report is available for inspection and review.

a. Collective Significance Report

b. Project Ststus Reports 2 Discovery by - CASE against Applicants commences on thai report. .Such discovery would be limited to clarifyir.g ambiguities , or discovering the process utilized in the preparation of the report.

30 Discovary responses regarding that rep'>rt completed.

50 CASE files notice stating:

a. whether CASE wishes to contest all or portions of l that report.

b. those portions of the report that it wishes to con-test, the differing conclusions the Board should reach, and a brief statement setting forth all reasons-it intends to rely upon in support of its position.

c. whether CASE Intends to proceed by cross-examination only, or by offering direct evidence.

Applicants and Staff file opposition to litigation of issues, 60 if any.

l 80 Licensing Board issues order deciding what issues are

! litigable.

l PHASE 11.

1 1 (Trigger Staff files Evaluation Report on the subject report.

Date) 2 Discovery begitis by CASE and Applicants against Staff.

CASE's discovery would be ilmited to clarifying ambigul-ties in the Staff's report, or otherwise discovering the

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l l . 1 l 3rocess utilized in preparation of the report. Discovery ay Applicants and Staff against CASE commences.

f 30 Discovery responses completed.

4 PHASE 111.

1 Completion of discovery against Staff, or day that Licens-Ing Board issues order deciding what issues are litigable.

30 Direct Testimony filed by all parties.

45 Rebuttal Testimony, if any, filed by all parties. Parties  ;

identify and provide to all other parties those exhibits and documents (or any other materials) intended to be used in cross-examination.

60 Earliest cate for commencing a hearing.

l PHASE IV.

1 Record closes.

l 30 Applicants file findings of fact and conclusions of law.

1 40 CASE files findings of fact and conclusions of law.

50 Staff files findings of fact and conclusions of law.

NOTES (1) All days are business days.

(2) All pleadings, responses, and motions are to be filed such that they are received by the due date shown.

(3) All discovery requests are to be flied such that respond!ng parties will have the full benefit of the time periods provided in Commis-sion's Rules of Practice.

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USNRC UNITED STATES OF AMERICA .g7 g .g pg g3 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING B(MBAb .LgfA (CI.

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um,r 1 In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET AL. ) 50-446-OL

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(Comanche Peak Steam Electric ) )

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Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR ESTABLISHMENT OF SCHEDULE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system, or as indi-cated by double asterisks by use of express mall service, this 2nd day of October,1987:

Peter D. Bloch, Esq. , Chairman

• Mrs. Juanita Ellis**

Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Renea Hicks, Esq.

Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division 1107 West Knapp P.O. Box 12548, Capital Station Stillwater, OK 74075 Austin, TX 78711 Elizabeth B. Johnson Robert A. Wooldridge, Esq.

Administrative Judge Worsham, Forsythe, Samples Oak Ridge National Laboratory & Wooldridge P.O. Box X, Building 3500 2001 Bryan Tower, Suite 3200 Oak Ridge, TN 37830 Dallas, TX 75201 Dr. Walter H. Jordan Joseph Gallo, Esq.

Administrative Judge Isham, Lincoln & Beale 881 W. Outer Drive Suite 1100 Oak Ridge, TN 37830 1150 Connecticut Avenue, N.W.

Washington, DC 20036 1

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I i Billie Pirner Garde ** Mr. W. G.- Counsil 921 East Washington- Executive Vice President Appleton, WI 54911 Texas Utilities Generating Company 400 North Olive Street, L.B. 81 Dallas, TX 75201 Anthony Z. Rolsman, Esq.

William L. Brown, Esq.* .

U.S. Nuclear Regulatory Commission Suite 600 611 Ryan Plaza Drive, Suite 1000 1401 New York Avenue, NW Arlington,- TX. 76011 Washington, DC 20005 A'sst. Director for inspec. Programs William H. Burchette, Esq.

Comanche- Peak Project Division Mark D. Nozette, Esq.

U.S. Nuclear Regulatory Commission Heron, Burchette, Ruckert P. O. Box 1029 & Rothwell, Suite 700 Granbury, TX 76048 1025 Thomas Jefferson Street, N.W.

Washington, DC 20007 Lanny Alan Sinkin James M. McCaughy

- Christic Institute . CDS Assoc. inc.

1324 North Capitol Street 1850 Parkway Pl., Suite 720 Washington, DC 20002 Marietta, GA 30067 Robert D. Martin

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Board Panel

• 611 Ryan Plaza Drive, Suite 1000 U.S Nuclear Regulatory Commission Arlington , . TX 76011 Washington, DC 20555

' Robert' A. Jablon, Esq. - Atomic Safety and Licensing Appeal Spiegel & McDiarmid Board Panel

• 1350 New York Avenue, N.W. U.S. Nuclear Regulatory Commission 1 Washington, DC 20005-4798 Washington, DC 20555 Thomas G. Dignan, Esq.** Docketing and Service Section*

Ropes & Gray Office of the Secretary 225 Franklin Street U.S. Nuclear Regulatory Commission Boston, MA 02110 Washington, DC 20555 j l

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., Ges]y 5. I no V Counsel f RC Staff

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