ML20011A310

Response to Applicant & NRC Opposition to Citizens for Equitable Utils Motion to File Addl Contentions.Contentions Must Be Heard in Proceeding.Serious Questions of Competence, Character & QC Failures Are Raised.W/Certificate of Svc

ML20011A310
Person / Time
Site:	South Texas
Issue date:	10/06/1981
From:	Jordan W CITIZENS FOR EQUITABLE UTILITIES, HARMON & WEISS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8110090285
Download: ML20011A310 (12)

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CEU. RESPONSE TO APPLICANT-AND STAFF 'W ' -

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CEU received the NRC Staff and Applicant filings in opposition to its Motion to File Additional Contentions on Wednesday, September 30,'and Friday, October 2,-respectively. They argue that CEU's con-tentiani do- not meet the tests of 10 CFR 2.714 (a) (1)-(v) and that the contentions _are impermissibly vague. The Applicant also argues that I the new contentions are not within the scope of the expedited phase .

of the Operating License hearing.

i To the contrary, CEU filed additional contentions as soon as it was reasonably on notice that any breakdown in the vendor surveil-lance program with respect to structural steel was so serious as to i

constitute a major failure of quality control that should be con-l l sidered by the Board in this expedited phase of the OL hearing.

CEU's additional contentions meet all of the tests of 10 CFR 2.714, and they are both clearly stated and supported by a sufficient basis.

I. CEU's Additional Contentions Meet the Test of 10 CFR

2. 714 (a) (1) .

10 CFR 2.714 (a) (1) establishes the test for acceptance of late filed petitions to intervene, and it has been held applicable to late filed contentions. The Board is required to balance the follow-N s

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ing 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 pro-tected.

(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 represented by existing parties.

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

Since these stcndards were specifically. written to apply to late petitions to intervene, arguments related to contentions .

filed after hearings have begun must be shochorned into the standards sbmewhat awkwardly. The most obvious problem is defining

'what a " late contention" is in order to determine whether the standards apply at all. Where a contention is based on new informa-

. tion, as is the case here, it is arguable that these standards do not apply since the contantion cannot be considered to be late if it is filed reasonably soon after a party could reasonably be on notice of the information supporting the contentions. In any case, CEU will address the standards in order.

A. CEU's Filing Is Timely The Applicant and Staff attack CEU's additional contentions primarily on the ground that they snould have been filed earlier based on a,S50.55(e) report dated February 6, 1981. (Exhibit 1).

Iloueve r , that argument depends upon the proposition that the re-port in question or other reasonably available information put

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CEU on notice of-the extensive quality control failures that later came'to-light:and that are the' central focus of our con-

-tentions. That proposition is at odds with reality. ,

The ' S5 0.55 (e) report of February 6, 1981, gives virtually no hint =of.the extent of the problem. From that document, there is no reason to believ"c'that the problem reported was anything more than an isolated incident involving a small number of items.

There is no indication that all of the steel or even any signifi-cant proportion of the steel supplied by American Bridge was in-l l 'volved. The highest number mentioned is forty (40) NCRs which is a pittance in the vastness of the project. In fact, the most

. reasonable conclusion to draw from the report is that a minor l problem developed in the vendor surveillance program and was quickly remedied. That would hardly be - the basis for a conten-tion by C56. There is certainly nothing in either of the S50.55(e) reports cited by the Applicant and the Staff to indicate that the vendor surveillance failure related to four years of structural steel or some 8,000 beams.

CEU had no basis for contending that the Applicant and Brown i and Root had suffered a major vendor surveillance failure until the recent press reports. Not only does that fact constitute good cause under 10 CFR 2.714 (a) (1) (i) , it establishes that the contentions are not filed late at all and are not even subject to the standards for late filed contentions.

From CE,U's perspective, it appears that the Applicant may pursue a practice of minimizing any problems reported pursuant to 550.55(c) so that the public will not appreciate the full extent of the failures. If that provides adequate information l

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tofthe Staff, it may well satisfy 550.55(e). However, such sketchy and incomplete'information cannot later be used to argue that-CEU had adequate notice of a fundamental-quality control failure not even hinted at in-the-public document. Only if the Applicant provides complete information in its reports can it later argue that CEU hid adequate notice to file any relevant contentions.

B. There Is No Other Means Of Protecting CEU's Interests.

The Applicant and Staff argue that the 550.55(e) reporting requirements and subsequent Staff review will adequately protect CEU from any safety hazards that might be involved in the use of the American Bridge steel. If that were true, presumably all of the welding and concrete failures that were discovered after several years of construction, and then only in the course of a Staff investigation prompted by constant intervenor prodding,.

would have been caught and_ corrected long ago. More importantly, however, this response misses the point of CEU's contentions.

The most significant lesson of the American Bridge steel incident is that_the Applicant and B & R apparently allowed an inadequate QC/ vendor surveillance program to exist for four years and to accept an enormous amount of safety related structural steel. While the S50.55 (e) process may assure that the steel itself is corrected, it will do nothing to investigate the reasons for the quality control failure, to improve the QC program, or to deter 1ine 'whether the failure was in part the result of a lack of competence and character on the part of the Applicant. Since j these events have a direct bearing on that issue and on the failures of quality control at the project, they must be considered i l

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b bylthe Board specially convened to address those issues.

C. A Sound Record Depends Upon Admission

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Of These Contentions And Participation Of CEU.

As stated above, these issues are central to the Board's consideration of competence and character and to its examination of' quality control'at the project. The record would be grossly incomplete if they are not addressed.

D. CEU Is Not Adequately Represented By Any Other Party.

This particular standard is the most obvious illustration of tho fact that S2.714 (a) (1) was written to apply to late inter-vention petitions, not late filed contantions. It does not make any sense in this context. However, it is clear that neither the Staff nor the Applicant would adequately represent CEU's interests with respeqt tc these matters since they have kriown about them in detail for many months and have never seen fit to bring them ,

! to the attention of the Board, despite the fact that quality con-trol failures of this sort are crucial to the Board's consideration at this phase of the hearing.

E. Consideration Of These Contentions Would Not Unduely Broaden Or Delay The Processing While these contentions would involve substantial discovery and additional testimony in the hearing, there is no reason to believe that they would either broaden or delay the hearing to a significant extent, particularly given the recent upheavals at i

the project that will require substantial delay simply to determine i i*

what is going on there.

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The contentions do not significantly broaden the hearing because they fall well within the area of quality control, which 9 iyp w gy ----m-,is- *m- -

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'has been'the focus of'most of the proceeding.

Even the' issue of; weld safety is~ already part of the proceeding. To a large degree, Lthese cantentions are only a subset o'f matters already under

-consideration.

In. normal circums,tances, new contentions of this sort might well delay a proceeding, although the delay would.not be un-warranted. Here, they may not result in any delay at-all. All

'of these contentions relate to past performance of the Applicant and its prime contractor. Discovery can be reasonably expeditious, and testimony might involve a few days of hearing.- We could ta!:e the matter up-in January, assuming discovery begins immediately.

By contrast, the fact that the Applicant has chosen to fire Brown ,

and Root in several significant areas means that it will be several months befo_re the Applicant, much less the other parties and the Board, will even know precisely what it is doing at the project.

Further hearings will obviously be necessary on the impact of the change in terms of the issues now before the Board, and we cannot reasonably expect completion of discovery and presentation of relevant testimony on those impacts for several months. The new contentions raised by CEU would have virtually no impact on the hearing by comparison with the delay that will be necessary to examine the reasons for and impact of firing Brown and Root.

2. CEU's Contentions Comply With The Specificity And Basis Reauirements.

The arguments that CEU has not provided contentions with adequate specificity and basis are simply wrong. The basis is detailed at length in the newspaper articles accompanying CEU's filing, and each contention is tied specifically to a particular i

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requirement of NRC regulationsJor-the Atomic Energy Act.

The available evidence indicates that the Applicant con-

)h sistently-accepted defective steel over a four year period from American Bridge. If that is'so, the Applicant failed to perform adequate inspecticas or control material at the site of the supplier, as specifically required by Section VII of Appendix B.

(Contention 1). It also failed to perform adequate inspections prior to acceptance of matarial at the site as required by Sections X and VII of Appendih B, and to prevent the use of defec-

'tive materials as required by Sections X, VII, and I of Appendix B.

1 (Contentions 1 and 2). For the same reasons, the Applicant failed to carry out adequate oversight of B & R's QA program with respect.

to vendor surveillance, as required by Sections II and VII of Appendix B. Those are the points that are to be litigated under the contentions.

It may be that it is somewhat difficu't to deternine specific narrow aspects of quality control requirements that have been violated. However, that is the fault of Appendix B itself, which is written in very broad language. Intervenors can hardly be required to be more specific in their contentions than the NRC is in the regulations establishing its own requirements.

The only possible quarrel with CEU's contentions 1-4 is that I they do not relate solely to failures in vendor surveillance I

of structural steel, which is the specific basis for the conten-tions. This,is the case because CEU views the American Bridge l l

failures as indicative of likely broader failures. However, it would be acceptable to CEU to limit those contentions to the basis

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provided since Contention 8 specifically raises the broader question. Contention 8 stands as well, however, because the failure of vendor surveillance in the. crucial area of safety related structural steel gives rise to the reasonable presumption that similar failures have occurred in other areas. Given the mandate for conservatism in considering the issuance of nuclear plant licenses, it is incumbent upon the Applicant and the Staff to demonstrate that the failures do not extend beyond the structural steel.

Contentions 6 and 7 are supported by the same facts that suppcrt the admission of the other contentions. Contention 7, in particular, is supported by the fact of the quality control s-failure itself. When such a failure occurs, there must be a presumption of safety hazard until invectigation proves the contrary. '"If, as tha Applicant asserts, there is no safety hazard, it can presumably prevail in a Motion for Summary Disposition on the point or in testimony, but it must be required to address the issue.

Finally, CEU withdraws Contention 5. It appears that the S50.55(e) reporting requirements have been not to the satisfac-tion of the Staff. Even so, we believe there are serious questions about the adequacy of the repart and that the Staf f should require substantially greater detail so that the public can have a full understanding of the hazards that it faces. In addition, since the vendor syrveillance failure extended over a four year period, we question whether the tight time constraints of S50. 55 (e) were complied with. However, we do not have a specific basis for believing they were not at this time.

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.Should subsequent information indicate that-the' report was not made when required, we will submit an additional contention to

-that effect.

'III.

These Contentions Must Be Heard In This Phase of The Hearing.

We have explained,elsewhere why these contentions must be heard-in this phase of the. hearing. To r~espond to the Applicant's argument, we simply reiterate that these contentions raise serious questions of competence and character and quality control failures that the Board has been directed to address in this phase of the hearing.

Respectfully submitted,

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William SI,; Jordan, III -

Harmon & Weiss 1725 1 Street, N.W. Suite 506 (202) 833-9070 Counsel For CEU Dated October 6, 1981

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..-- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

- BEFORC THE ATOM'IC SAFI;T_Y AND LICENSING BOARD

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In the Matter of. )

) Docket No. 50-498 HOUSTON LIGHTING AND POWER CO. ) 50-499 A (South Texas Project, Units 1 -)

and.2) .)

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CERTIFICATE OF SERVICE I hereby certify-that copies of CEU RESPONSE TO APPLICANT AND STAFF OPPOSITIONS TO ADDITIONAL ,

CONTENTIONS 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, arranged for hand delivery, this 6th day of October, 1981.

-Charles Bechoefer, Esq. , Chairman Melbert Schwartz, Jr. , Esc Atomic Safety and-Licensing Isaker and llotta Board Panel One Shell Plaza U.S. Nuclear Regulatory Commission llouston, n 77002 Washington, D.C. 20555

• Edw!n J. He i.s Dr. James C. Lamb, III Office of Executive Legal!

313 Woodhaven Road Director Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Commission Mr. Ernest E. liill Wanhington, D.C. 20555 Lawrence Livermore Laboratory ,

University of California

• Jack R. Newman, Esq.

P.O. Box 808, L-123 Lowenstein, Newman, Rein, Livermore, California 94550 Axelrad & Toll 1025 Connecticut Ave., N .1 Brian 11erwick, Esq. Washington, D.C. 20036 Assistant Attorney General Environmental Protection Div. Docket.i ng and 'S cvi ce P.O. Box 12548, Capitol Station Section Aus, tin, Texas 78711 Office of the Sceretary U.S. !!uclear Regulatory Commission Washington, D.C. 20555

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• Lanny Sinkin 2207-D Nueces Austin, TX 78705 Atomic Safety and ,

Mrs. Peggy Buckhorn Licensing Board- Executive Director.

U.S. Nuclear Regulatory Citizens.for Equitable

. Commission- Utilities, Inc.

Washington, D.C. 20555 Route 1, Box 1684 Brazoria, TX 77422 Betty Wheller, Esq.

-Tim Hoffman, Esq.

Hoffman, Steeg & Wheeler 1008 S. Madison Amarillo,.TX 79101

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• Iland Delivery arranged for Oct. 7, 1981 v

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