ML20101T370
| ML20101T370 | |
| Person / Time | |
|---|---|
| Site: | Waterford  |
| Issue date: | 02/01/1985 |
| From: | Churchill B LOUISIANA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#185-416 OL, NUDOCS 8502060124 | |
| Download: ML20101T370 (31) | |
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UNITED STATES OF AMERICA 3 NUCLEAR REGULATORY COMMISSION SFg ,y NT ,Qy Before the Atomic Safety and Licensing Appeal Board In the Matter-of ) ,,
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LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382 CL
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(Waterford Steam Electric Station, )
Unit 3) )
APPLICANT'S ANSWER IN OPPOSITION TO JOINT
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INTERVENORS' MOTION FOR LEAVE TO FILE REPLY On November 30 and December 21, 1984, respectively, Appli-cant'and the NRC Staff filed answers to Joint Intervenors' vo-luminous November 8, 1984 motion to reopen the record. Late on Friday evening, January 25, 1985, after close of business, almost two months after Applicant's answer and over a month after the Staff's answer, Joint Intervenors' filed a motion for leave to reply to answers. 1/ A reply brief (" Reply")
accompanied their motion. 2/ For the reasons discussed below, J1/ . Joint Intervenors' Motion for. Leave to File reply to Applicant and NRC Staff's Responses to Joint Intervenors' Mo-tion to Reopen, January 25, 1985
-2/ -Joint Intervenors' Reply to Applicant and NRC Staff's Re-sponses to Joint Intervenors' Motion to Reopen, January 25, '
1985.
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leave to file the Reply should be denied, and the Reply itself should be stricken from the record.
I. JOINT INTERVENORS DO NOT HAVE THE RIGHT TO FILE A REPLY The Commission's rules of practice governing the type of reply 1 filed by the Joint Intervenors are clear. Movants do not have a right to file a reply to answers to their motions; such a reply may only be made upon prior application for and the granting of leave to file by the presiding body. See 10 C.F.R. 2.730(c); Detroit Edison Company (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978); Arizona Public Service Company, et al. (Palo Verde Nuclear Generating Station, Units 1.and 3), LBP-83-36, 18 NRC 45, 50 (1983). Leave to file a reply "will be granted sparingly," and then only upon a i _ strong show'ing of good cause". Texas Utilities Generating
' Company, et al. (Comanche Peak Steam-Electric Station, Units 1 and 2), LBP-81-22, 14 NRC 150, 157 (1981); Commonwealth Edison Company (Byron Station, Units 1 and 2), LBP-81-30A, 14 NRC 364, 372-(1981). If'a motion for leave to file a reply brief is made, "the reply brief should not be attached to the motion but should only be' submitted after permission to file is granted."
-Public' Service Company of Oklahoma Associated Electric Cooperative, Inc.-(Black Fox Station, Units 1 & 2), LBP-76-38,
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4 NRC 435, 441 (1976). Joint Intervenors have failed to meet these standards.
A. Joint Intervenors' Filing is Prejudicial and Unfair To Applicant's prejudice, in contravention to the Commis-sion's requirement that leave be granted before the reply is filed, Joint Intervenors have impermissably submitted their reply brief simultaneously with their motion for leave to file the brief. The purpose for the requirement that leave be sought'by a movant prior to filing a reply to an answer is to provide order to the briefing process and fairness to the par-ties, and to prevent an unnecessary " ping-pong" battle of briefs. Parties will naturally seek to have the last word on every issue,'and without some order to the briefing process, this desire would lead to an avalancheuof paper in which each
. side-continues to find fault with its opponent's latest re-
.sponses. To keep the process under control and assure that the a:
briefing process comes to an-end, the Commission's rules of practice'specify that under ordinary circumstances, the moving
- party-will not be allowed to file a reply to a brief responding.
to its motion. 10 C.F.R. 5 2.730(c).
-The: rules contemplate that both the movant and the respon-
' dent will each have-one chance.to make their case. While the movant may apply-for leave to file a response brief, it is the L
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Appeal Board, not the Joint Intervenors, who should decide if circumstances exist that justify the initiation of another round of briefing. By filing their Reply simultaneously with their motion for leave to file their Reply, Joint Intervenors have' undermined the purpose of the rule, have infringed on the power of the Appeal Board, and have prejudiced Applicant's right to initially challenge Joint Intervenors' request.
Joint Intervenors' statement that their reply brief will not prejudice any party is not true. Any filing that lengthens the proceedings carries with it at least the potential for delay in an ultimate decision on full power operation of Wa-terford 3. Such a delay would carry with it extreme prejudice to Applicant and the public to whom it provides electric power.
That prejudice is heightened considerably by Joint Intervenors' impermissable filing of its Reply along with its motion for leave to reply.
B. Joint Intervenors Have Not Been Diligent in Their Filing Joint Intervenors' motion for leave to file a reply comes nearly two months after. Applicant's November 30, 1984' answer,.
and moreLthan a month after the-Staff's December 21 answer.
Such lack.of diligence is especially egregious in the context of this particular proceeding.where the motion to reopen itself was' extraordinarily untimely, and where Joint Intervenors are
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-well aware of the severe time constraints facing Applicant.
Under such circumstances, preoccupation of counsel is not a
- reasonable. excuse for the dilatory filing. Motion at 1.
Equally unreasonable is the excuse of awaiting the issuance of the NRC's SSER 9,3/ all the more' so since, as will be discussed Lin Section II below, SSER 9 was not used to reply to any argu-ments;in Applicant's or the Staff's answers. Neither of these reasons comes close to justifying why the one-page motion for leave L to-file a reply could not have been filed considerably earlier.
~The record is closed.
It is Joint Intervenors who are at-Lt empting to.-take the extraordinary and highly consequential step of having it reopened, an attempt in which they bear a
" heavy burden." Kansas Gas & Electric Co., (Wolf Creek Generating Station-No. 1),-1ALAB-462, 7 NRC 320, 338 (1978).
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'Therefore, particularly under the. circumstances of this case,
' Joint;Intervenors should be held to a high' standard of dili-gences not the opposite. Applicant and the Staff were able to submitssubstantial responses in'a very short time-to Joint:In-
.te rvenors ' lengthy and' untimely motion-. to reopen. It should be expected that Joint Intervenors-would d'o'the same.
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n f3/ Safety Evaluation Report Related to the Operation.of the' Waterford Steam Electric. Station,: Unit No. 3, NUREG-0787~,-Supp.
19l(December 1983). ,
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.C. Joint Intervenors Have Not Provided Good Cause for Filing a Reply In addition to ignoring the Commission's requirement of obtaining leave prior to filing their Reply, Joint Intervenors have completely failed to meet the requirement to establish good cause justifying the granting of their motion.
Moreover, while Joint Intervenors' instant motion is cast as a request for leave to reply to the answers of Applicant and the NRC Staff to the motion to reopen, very little of the proffered document can be construed as a reply to the filings of Applicant and the Staff. The majority of the Reply consists of new arguments and exhibits which do not relate to the infor-mation contained in Applicant's and the Staff's answers. See, e.g., Reply at-5-21, Sections III-IV. Joint Intervenors have not sought leave of the Appeal Board to supplement their motion to reopen, and consequently have provided no cause for such supplementation. See Section-II, infra.
The only attempt made to provide cause for filing a reply is Joint Intervenors' assertion, without explanation or ampli-fication, that'"[t]here are a number of misstatements and mis-
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leading statements made in both applicant and the NRC Staff's briefs which require correction." Motion at 1. In light of the policy _behind'10 C.F.R.'S 2.730(c) discussed earlier,.it seems doubtful as a general matter that an asserted and unexplained need to correct " misstatements and misleading i
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statements" can provide the good cause needed to grant leave to file a reply brief. In an adversarial context, it is always possible to construe the arguments of one's opponent as con-sisting of incorrect or misleading statements. If leave were granted to " correct" such misstatements on a routine basis, the ping-pong battle of briefs that the rule was intended to avoid would. ensue as each party attempts to correct the alleged mis-statements of other parties. Therefore, at a minimum, the
" misstatements or misleading statements" that Joint Intervenors cite ought to be serious and of safety significance in order to justify leave to file a reply brief. As will be shown below however, the " misstatements and misleading statements" that they cite are either not wrong or misleading, are themselves in error, or are of absolutely no significance. With no good cause havin" been shcwn for filing its Reply, the motion must necessarily be denied.
The only section of Joir.t Intervenors' proposed Reply pur-porting to deal with misstatements,Section II presents four instances of~ alleged misstatements by the Staff. Reply at 4-5.
The first instance cited by. Joint Intervenors involves a com-
.parison of a statement made by Mr. Crutchfield_in his affidavit attached to the NRC Staff's answer 4/ with a statement made by-4/ Affidavit of Dennis M. Crutchfield, Decemb'er 21, 1984
("Crutchfield Aff.").
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h Mr. Denton at a June 8, 1984 public meeting concerning Wa-terford 3. Reply at 4. Joint Intervenors apparently believe that these statements, concerning the circumstances under which CAT inspections are conducted, are contradictory. Id. It is not at all apparent that the statements are contradictory. Mr.
Crutchfield was referring to " construction and QA problems,"
while Mr. Denton'was apparently referring to prob.. ems in meet-ing'" requirements" of an unspecified nature. In any event, the alleged contradiction, if.in fact it is a contradi: tion, has no significance and no bearing whatsoever on the merits of Joint Intervenors' motion to reopen.
Next, Joint Intervenors complain about Mr. Crutchfield's statement that Joint Intervenors' were incorrect in stating that the NRC's Task Force was composed of 22 inspectors. Reply at 4-5.(apparently referring to Crutchfield Aff. at ill).
Joint Intervenors say that they derived this information from pages 2-3 of the introduction to SSER 7.5/ A reading ef'those pages yields-a list of 62 names of the individuals who com-
- prised the NRC Task Force. 'This is-consistent with Mr.
Crutchfield's' statement-that "over-50 technical specialists were involved." Crutchfield Aff. at 1 11. That' fact is not
-disputed. Joint Intervenors are concerned only about what he said they said.
This is truly quibbling. It has_no bearing on r 5/- NUREG-0787, supra, Supp. 7 (September 1984).
the merits of the motion to reopen, and falls far short of jus-tifying a reply to the Staff's answer.
Joint Intervenors claim that Mr. Crutchfield stated "some-what mysteriously" that at least one of the three anonymous af-fiants that submitted affidavits in support of Joint Interve-nors' November 8 motion to reopen has contacted the NRC Staff but refused to identify safety issues. Reply at E. They imply that this was a factual misstatement. In fact, Mr. Crutchfield stated that "it is our belief" that one of the allegers was in contact with the NRC, Crutchfield Aff. at 112, and Joint Inter-venors have not offered any evidence to the contrary. The only basis they provide for their charge is that' they de, not have any information that any of the affiants did as Mr. Crutchfield testified. Obviously, the fact that Joint Intervenors have no knowledge of the incident cannot possibly demonstrate that the incident did not occur, and cannot serve as a basis for alleg-ing that-Mr. Crutchfield made a misstatement of the incident in
-hisl sworn statement. Their charge that Mr. Crutchfield made a I
misstatement is unfounded.
Finally, Joint Intervenors allege that Mr. Crutchfield made misstatements concerning. reimbursements paid to allegers who' worked with the NRC Staff. Reply at 5. This charge is unsupported. Hearsay statements allegedly made by an individ-ual to one of Joint Intervenors' counsel is incompetent as a basis for impuning Mr. Crutchfield's sworn statement. No sworn
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statements of the individual were provided nor are the state-ments a part of the record in any way. Joint Intervenors' al-
, ' legation is clearly baseless.
The only other arguments that could be construed as alleg-ing " misstatements and misleading statements" are found in Sec-tien IV, Reply at 21-24. These arguments are devoted solely to Applicant's statements that the exhibits attached.to Joint In-tervenors' motion to reopen did not support the specific allegations made. None of the cited statements is a " mis-statement" or " misleading statement".
Joint Intervenors first allege, contrary to Applicant's statement, that JI Exhibit 1, a 1979 report by Management Anal-ysis Company (MAC), supports the allegation that "LP&L failed, even after notification, to ensure administrative procedures were instituted to cover the interface between on-site and off-site personnel." Reply at 22. Joint Intervenors' protes-
.tations to the contrary, there simply is no reference to such administrative procedures in the MAC report. Even if there were, the exhibit certainly could not support the allegation that after such " notification" Applicant failed to develop such procedures. See Applicant's Answer at 18 and attached Re-sponses.to Specific Allegations in the Joint Intervenors' Mo-tion to Reopen to the Record (" Affidavit") at 33-34, Item A(4)(c).
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. Joint Intervenors claim that Applicant was wrong in ,
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' stating that JI Exhibi,t 4 did not support the allegation that
, " construction had effective control over day-to-day operations
_of,the QA department and the major policy decisions" because JI Exhibit.4;shows QA reporting to the Manager of Power Produc-
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- tion; Reply at 22. This fact indicates just the contrary --
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- construction did not control QA. Figure 1-1 of JI Exhibit 4 (Section QR 1.0, p. 13, not included in Joint Intervencrs' Reply:-Exhibit 2) clearly-shows the Nuclear Project Manager and
- the Quality Assurance Manager reporting through independent or-ganizational chains of-command up to the Manager of Power Pro-duction. Both Figure.1-1 and Joint.Intervenors' Reply Exhibit I 2, Section QR 1.0 at 2', show that the Manager of Power Produc--
- tion reported directly-to the President of LP&L. This organi-
.zational-structure was a part of the approved-Quality Assurance Program which was-squarely in'accordance with the requirements-
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iforc organizational separation in-Criterion 1 of 10 C.F.R. Part 150,nAppendix B. See' Applicant's Answer at:19 and Affidavit at'
'3-4, Item-A(1)(a)(iii). >
Joint Intervenors have mischaracterized' Applicant's; state-~
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. _ ments with: respect to JI Exhibitsil,~8 and 22~as-they pertain-I
- to_the. allegation _that "LP&L failed to provide'QC coverage.for -
iworkhdone'on the night shift." Reply at 23. What' Applicant Kstated was,."JI_ExhibitsL1 and 22.have~'nothing._to do~.with QC-4 coverage,._and:JI Exhibit-8 is nothing more than a' demonstrably
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false allegation by an anonymous affiant." Applicant's Answer at 19-20. JI Exhibit 1 does not touch on QC. Neither does JI
. Exhibit 22. The statement now cited by Joint Intervenors for the.first time from Exhibit 22 refers to a quality assurance auditing and surv_Allance program that was being conducted in ,
.1979 with respect to cable pulling. It had nothing to do with QC coverage, night or day. Joint Intervenors have not chal-lengedLApplicant's statement that the allegation in JI Exhibit 8 was demonstrably false. See Applicant's Answer gt 19-20 and
. Affidavit at 17-18, Item A(1)(o).
Joint-Intervenors assert that Applicant is wrong in
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stating that JI Exhibits 25 and 26 do not support the allega- -
tion that "LP&L lacked a records index as committed to in LP&L's PSAR and as required by ANSI N.45.2.9." -Reply at 23.
Applicant correctly stated that'the two exhibits "contain no
- reference to-a lack of.a records index that may be required by the PSAR,or ANSI N45.2.9." Applicant's~ Answer at 18. -In fact, in their' Reply,. Joint'Intervenors now say only that the exhibits'demonstratedia " problem"'that would have.been cured'or avoided'by such1an-index.
The facts are that the' exhibits make no reference-to such.an index, Applicant-indeed has the re-quir,ed'index,fand the." problem" alluded to.was-minorfin nature and was not indicative _of either a failure of-adequate document control or a failure to detect'and correct. design. errors. -See
-Applicant's Answer atJ18 and Affidavit at:26, 29-30, and 36,
-Items A(3)(c), A(3)(g)"and A(5)(b).
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Joint Intervenors' concede the accuracy of Applicant's statement that Exhibit 29 does not support the allegation that
,- "LP&L did not maintain adequate oversight of procurement activ-ities." See Applicant's Answer at 19 and Affidavit at 26 and 28-29, Items A(3)(b) and A(3)(f). Instead, they now proffer three exhibits not previously submitted which they assert sup-ports the allegation. Reply at 24. Hence, this is not an ex-
. ample of a " misstatement or a misleading statement".
n .In' sum, none of the instances cited by Joint Intervenors in their Reply supports the stated basis for their motion that Applicant'and the NRC Staff made " misstatements and misleading statements" in their answers to Joint Intervenors' motion to reopen.the record.
The remaining portions of Joint Intervenors' Reply are completely unrelated to Joint Intervenors' purported require-ment to correct " misstatements" and " misleading statements."
In fact, .with'the exception of Section I,g/ the balance of their brief cannot even be. characterized as responsive to ei-ther Applicant's or Staff's arguments against Joint
.Intervenors' motion to reopen.
s/ Section I, Reply'at~2-4, precents-Joint Intervenors' in-credible argument that the Staff's use of wording similar to
, .that'in Applicant's answer indicates that-the Staff has not
~done an independent analysis. The affidavits' attached to the Staff's.-answer. clearly demonstrate that the Staff independently reviewed the materials-of record and relied on their own con-clusions in formulating their response. .The use of-quotes and wordslfrom Applicant's brief indicates agreement with Appli-cant's argument, not capitulation.
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.y Having. totally failed to provide good cause, the motion for leave to reply should be denied.
II. THE PROFFERED REPLY IS PRIMARILY A SUPPLEMENT TO THE MOTION TO REOPEN RATHER THAN A REPLY TO THE PARTIES' ANSWERS
'The only parts of Joint Intervenors' Reply that can be construed as a reply to the answers filed by Applicant and the Staff are Section I (dealing with the close agreement between
' Applicant and the Staff on the lack of merit of the motion to reopen), Reply at 2-4,Section II (dealing with alleged factual
' misstatements in th'e Staff's answer), Reply at 4-5, and Section
-IV (taking issue with Applicant's statements about Joint Inter-venors'. exhibits), Reply-at 21-24. The bulk of the proffered Reply concerns new' issues and arguments not raised in the mo-tion to reopen. Reply, Sections III-IV, at 5-21. For example,
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Joint Intervenors are now for-the first time' criticizing the disposition of certain issues by the-Staff in'SSER 7 even'
-though the subject. matter of these issues was not raised by Joint'Intervenors-in their motion to reopen. See, e.g., Reply
.at-7.(A-347, A-072, A-076, A-077)- Id. at.11-(A-341); Id.
(A-306); .Id.'at:12-13 (A-123). -Similarly, the arguments pro '
vided with. respect to SSER-9 are new. Reply at 13-21.' Joint-
- rIntervenors do'not purport to;be. responsive to the specific-U- . _ 'd
facts or arguments presented by Applicant and the Staff in their answers to the motion to reopen. As such, their argu-ments constitute an undisclosed attempt to supplement the mo-tion to reopen rather than a reply to the answers of the other parties. It should be rejected as unauthorized supplemental argument. Consumers Power Company (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 322 (1981).
Joint Intervenors have not sought leave of the Appeal Board to supplement their motion to reopen. Hence, they have not attempted to provide good cause for supplementing their mo-tion with new issues, arguments, and exhibits. The primary basis cited in their motion for leave to reply, alleged " mis-statements and misleading statements," certainly provides no cause for the introduction of new matters. Nor would their al-leged untimely receipt of SSER 9 be cause for supplementing the motion. No attempt was made to show that they had come into possession of new information of such. safety significance or importance as to warrant supplementing an already untimely mo-tion to reopen.
Part of Joint Intervenors' attempt to supplement their mo-tion involves the submission of four additional exhibits.7/ The new exhibits predate substantially the motion to reopen, and none is offered in response to any of the points discussed in
. Applicant's or the Staff's answers to the motion to reopen.
- L/ A fifth,. Exhibit 2, contains excerpts from JI Exhibit 4 of the motion to reopen.
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Exhibit 1 is a memorandum from the NRC Chairman presented in support of the totally specious allegation that the Staff had " predetermined" the safety significance of the allegations
~ discussed in SSER 7. Reply at 6-7. Not only is this a new issue, it is untimely. Both the memorandum, dated April 23, 1984, and SSER 7 predate Joint Intervenors' November 8, 1984 motion to reopen. Moreover, the purpose of the memorandum, on its face, was to develop administrative steps to avoid inaccu-
. rate delay forecasts, efficiently allocate NRC resources, and avoid " unwarranted" licensing delays. It therefore provides no support for the allegation.
Exhibits 3, 4 and 5 are newly proffered in support of Joint Intervenors' allegation that "LP&L did not maintain ade-quate oversight of procurement activities." Reply at 24. Pre-sumably this is in reference to Item A(3)(b)"at page 8 of their imotion to reopen. Joint Intervenors, however, made no argument at all in their motion to reopen with respect to this issue, other than to reference, without comment, JI Exhibit 29 which they now agree does not. support the allegation. Iji . Thus, they are: supplementing their motion with.both argument and exhibits, with no-reference at all to the substantive responses of Applicant and the Staff to the allegation. See Applicant's
' Affidavit at 26 and 28-29, Items A(3)(b) and A(3)(f), and Crutchfield~Aff.,--Attachment 2 at 3,4. Further, the exhibits
. provide no cognizable or timely support for the allegation.
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Exhibit 3, a letter dated November 9, 1976, demonstrates that Applicant had in place a program and procedures for control of
, purchased items received at the site, and that findings of pro-cedural noncompliance had been resolved and full compliance had been previously achieved. Exhibits 4 and 5 seem to be of the same ancient vintage as Exhibit 3. With respect to Exhibit 4, we see nothing in the exhibit that links the memorandum to the Waterford site or that is relevant to procurement activities.
And, as noted by Joint Intervenors, page 4 of Exhibit 5 indi-cates-that the document is concerned with documentation pack-ages for "non-safety items."
Beyond the arguments associated with the proffered exhibits, Joint Intervenors' supplementary offerings consist primarily of a commentary and a critique of SSER 7 and SSER 9.
' Reply at 5-21. Joint Intervenors do not feel that the Staff has provided enough information in the supplements to permit Joint Intervenors to determine if the Staff has adequately addressed all of the allegations. See Reply at 7, 8, 10, 11.
In addition, Joint Intervenors repeatedly claim that the sup -
plements do not contain sufficient detail to justify the Staff's conclusions. See Reply at 8, 11, 16, 18.
The SSER's are not intended to be comprehensive reports of
_the entire course, conduct and methodology used in a licensing review. They are' summaries of NRC findings. Joint Interve-
.nors' protestations notwithstanding, the conclusions set forth u- ,
in the SSER's were not' reached through slight-of-hand. The NRC Staff examined vast numbers of documents, and conducted numer-
_ous investigations, and interviews, prior to reaching the con-clusions ultimately set forth in the SSER's. It would not be practical cnr necessary to require the NRC Staff to fully detail the course of each investigation in its report.
The fact that Joint Intervenors desire more information is not basis for reopening a closed adjudicatory record. To jus-tify such a reopening, the proponent must come forward with a significant safety issue, not just a complaint that the propo-nent is less informed than the NRC. Joint Intervenors have not
- been invested with the privilege of overseeing how the NRC dis-p'oses of allegations. As stated earlier in Applicant's Answer at 32, asserted dissatisfaction with the staff's review is an insufficient basis to support a contention, let alone reopen a closed record. .The Commission's rules do not provide the right for an intervenor to. set itself up as an oversight organization to perform'an. additional review.
Joint Intervenors take issue with the way the Staff has D _
written SSER 7. Reply at 7-13. SSER 7 was issued in October of 1984,'yet no justification is offered explaining why the Joint Intervenors could not have made these comments earlier.
Part_of Joint Intervenors' motion to reopen was in fact devoted to a criticism of SSERI7. Motion to Reopen'at L52-56. If Joint Intervenors did have criticisms of SSER 7 relevant to their e
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motion to reopen, they should have been raised in that motion.
To the extent that their new criticisms are relevant to their motion to reopen, they constitute supplemental argument and should not be entertained.
In addition to constituting untimely supplemental argu-ment,. Joint Intervenors' criticisms are unfounded. Many of Joint Intervenors' criticisms are based on statements taken out of context, half truths and mischaracterizations. hor in-stance, as an example of an allegation illustrating the inade-quacy of Waterford's document control procedure, they cite A-223, SSER 7 at 203, in regard to which they quote the Staff as stating:
[R]ecords were poorly maintained; weld his-tory was difficult to follow; the filing system was extremely cumbersome; retrievability was difficult; and records were not always original copies .. .
Reply at 9, n.4. . Joint Intervenors artfully neglected to sup-pl'y the rest of the paragraph:
. . . (but originals are not a require-ment). Even though the noted problems are an NRC concern, all requested. records were available and were found to be acceptable.
This allegation _-has neither safety signifi-cance-nor. generic implications.
SSER-7 at 203.
Another example is the paragraph starting at the bottom of.
page,10 of the Reply. Joint.Intervenors there allege that in 1 conjunction with'its discussion of-A-35, SSER 7 at 92, the L -
Staff " acknowledges that adequate documentation may not be available'" to insure that Ebasco and LP&L adequately verified that piping systems were installed and inspected properly.
Joint Intervenors charge that
[n]onetheless, after reviewing no more than document control procedures, the staff con-cludes that: " Implementation (of the pro-cedures) was verified by reviewing objec-tive indications to substantiate documentation adequacy."
Reply at 10. On the hasis of this analysis of the Staff's treatment of A-35, Joint Intervenors take exception to the Staff's conclusion. Io. at 11.
Joint Intervenors neglected to say that SSER 7 clearly in-dicates that the Staff reviewed documentation packages as well as document control procedures. Packages were reviewed to de-termine if' adequate / detailed quality records were maintained, if the records-were complete prior to filing, if the inspec-
-tion / test results were documented and traceable to the materi-al, and if-records were retrievable when required. SSER 7 at
- 92. The Staff did not find that'" adequate documentation may
-not be available" as-Joint Intervenors allege. That quote was
-lifted from the section of the NRC's analysis wherein the-im-plications of allegation A-35 was discussed. The phrase is, in a sense, part of a paraphrase of the allegation, it does not.
Erepresent an;NRC " acknowledgement" of its veracity. :According-ly, Joint Intervenors have grossly mischaracterized the NRC's disposition of the allegation.
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In another example, Joint Intervenors allege that the NRC Staff erred in concluding that there is no factual basis to the allegation that QA record reviewers were not allowed "to look in the field" because they found problems with work. Reply at
- 12. Joint Intervenors claim that the "real significance" of this. allegation is that document reviewers "were being ob-structed in performing their job." Id at 13. The SSER, how-ever, provides no basis whatsoever for Joint Intervenors' new allegation. SSER 7 at 102 (A-123). The job of QA record re-viewers was to identify areas of record deficiencies. The Staff clearly noted that, if a record reviewer found a concern related to plant configuration, he was required to bring his concern to.the Ebasco QA/QC review and verification group. The Ebasco review and verification groups were charged with the responsiblity for conducting any necessary field work. Id.
Not'only was.it~not part of~a record-reviewer's " job" to look
'into the field, such reviewers were not necessarily qualified to-do so. Thus, as the NRC Staff concluded,-the allegation has
-no; safety signficance.
Not.only are Joint Intervenors' arguments specious, they are also contradictory. In their Reply at 9, they argue that
, -related allegations must-be considered together in order.to Lfully appreciate-the magnitude of-the problem; yet at page 7, f.they: chastise.the Staff for combining. allegations'because "it is~ impossible to' determine whether the staff has investigated f
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,+s each allegation." In their. discussion of SSER 9, the Joint In-
,tervenors criticize th,e Staff for failing to require more sub-stantial' review of documentation. Reply at 15, 18, 20. How- '
ever, where 100% reviews were done, Joint Intervenors argue
.that their findings cannot be credible because documentation
'"isinotoriously deficient." Id. at 17. They are simply taking a sca'ttergun approach in levying indiscriminate criticism with-rout basis. This kind of argument lacks substance and deserves no consideration.
With' respect to SSER 9, Joint-Intervenors offer various
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t criticisms of:the Staff's evaluation of Issues 1, 6 and 22
. 'which'were-described in the Staff's. letter of June 13, 1984 to
[ Applicant.
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Again, however,..the requirement for a motion to re-open is to: raise-a significant safety issue, not to simply
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' offer gratuitous, after-the-fact 1 criticism of the Staff's eval-TuationRofian! issue. As noted in Applicant's answer to the mo-
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l tion'to, reopen,. these~ issues were known to Joint'Intervenors well?in advance of their motion to reopen,.and there has-been
-no.~ justification given.forLwaiting until the eleventh houri.to come1 forward with.them to_the AppealLBoard. Applicant"s Answer
- at :10. 'Norican-Joint IntervenorslatestDarguments beisaid'to-beiin reply to Applicant's;or'the_ Staff's answers.' Jo' int In-Etervenors1havaitotally ignored Applicant's. Exhibits 12 a'nd 8 of .f;.
f their Answer,Ewhich are Applicant'sl evaluations and resolutio'ns
' of Issues >1' andI6, respectively,tand: Issue.22 was not. touched.
~
?upoulin thecmotion to reopen.
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For example, Joint Intervenors take issue with the dispo-sition of various issues in SSER 9 because the standards used
, allegedly were not those required by the NRC Staff at Zimmer and Midland. Reply Brief at 14. There is no reference in this argument to either the motion to reopen or the answers of the other parties. Joint Intervenors do not describe what these standards are, nor do they provide any evidence to show that such undefined standards are not being required, or why Wa-terford should be treated the same as Zimmer and Midland. In fact, the NRC Staff has stated that the Waterford 3 licensing issues were relatively minor compared to those at Midland and Zimmer. See Hammond Daily Star, October 2, 1984 at page 3B (attached hereto as App. Exhibit 1). There is no basis for drawing analogies. And there is no requirement that the NRC Staff depart from its case-by-case treatment in favor of some sort of stare decisis method of. resolving licensee issues.
Joint Intervenors descriptions of the-resolutions'of
-Issues 1, 6, and 22 are fraught with mischaracterizations. For example, in their critique of the NRC's disposition of Issue 1.
Joint Intervenors complain that in the area of seismic supports and restraints, "Ebasco conducted only undefined ' field verifi-cation activities ~and apparently small relative amount of ,
' reinspection (4500 safety-related pipe supports and 200 highly-stressed hangers)." Reply at 18. What Joint Interve-nors failed to add,-however, is that in addition, 3500 hangars
-23. 'r o
bd" were reinspected by LP&L with satisfactory results, that 100%
of the hanger documentation was reviewed by Thompson-Beckwith .
and Ebasco QA and sampled by LP&L, including some field inspec-tion, and that the NRC itself conducted as-built walkdowns.
2 SSER 9 at 17. The omission of these intensive hanger inspec- gg j-.
tion activities is seriously misleading and casts grave doubts =fi 12 on the veracity of Joint Intervenors' arguments. ,$
rr In another example, Joint Intervenors complain that the g-Staff ignored the fact that six unqualified Ebasco QC inspec- )) ,
tors were Level III's, and even though they did not perform s inspections, "it is likely that they were in supervisory or -2 R
adminsisrative roles" and that "their lack of qualification or em training may have greater consequences than if they had been merely inspectors." Reply at 16. In fact, the six inspectors 44 23 were cualified at Level II, not unqualifeid inspectors as Joint f$$
'41 Int enors allege. There is noirequirement that supervisors j]
and managers be qualified as Level,III. The six individiuals f]
performed no functions in their capacity as supervisors or man- g$
agers other than those for which they were qualified. LP&L Re- If sponse to Issue 1 at B-2, updating LP&L Exphibit 12, trans- Gi Bi mitted to the Appeal Board by letter dated December 20, 1984. 27 Joint Intervenors' treatment of Issue 6 is no better.
Joint Intervenors assert that, because deficiencies were found 3
-a in the sample of the NCR's and DR's reviewed, the Staff's find-ing of acceptibility constituted " Alice in Wonderland" ?"
9 i -
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reasoning. Reply at 19, citing SSER 9 at 31. Joint Inter-venors, however, unaccountably failed to note that the Staff
, clearly stated that none of the deficiencies were of safety significance. SSER 9 at 31. In three instances, " limited dis-cretionary rework" was performed, Id., but, contrary to Joint Intervenors' statement , such rework was not required. Based on the fact that Applicant's extensive review of NCR's and DR's found no deficiencies of safety significance, the Staff's re-solution was reasonable and proper.
Joint Intervenors criticisms about Issue 22 are even more misleading. They claim that "largely on the basis of the elec-trode manufacturer's word" the procedure used at Waterford for rebaking low hydrogen electrodes were found to be adequate even though the procedures did not meet Code requirements. Reply at
- 21. In actuality, SSER 9 explains that Applicant hired the weld rod manufacturer to conduct tests duplicating the rebaking process as it was actually utilized on site in order to assure that the process would provide acceptable characteristics. The 4
experimental data was reviewed by the NRC and was found to be satisfactory. SSER 9 at 83. The Staff relied on the manufac-4 turer's " word" only in the most literal sense. Once again,
~ Joint Intervenors' have mischacterized a'. SSER in order to make a new and misleading allegation.
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Joint Intervenors' nibbling and misleading criticisms cer-tainly do not rise to the high level of substance required to reopen a record, i.e., a showing that " uncorrected construction errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimate doubt as to the plant's capability of being operated safely." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1341, 1345 (1983).
III. CONCLUSION Joint Intervenors' motion for leave to file a reply is dilatory and prejudicial, and fails to meet applicable Commis-sion requirements. Joint Intervenors have not provided good cause for contravening the rule prohibiting such a reply. The motion is primarily an undisclosed attempt to supplement thier motion to reopen. Joint Intervenors have-not requested leave
- to supplement their motion, and have not attempted to provide cause for supplementing their= motion. Moreover, the' substance of:the reply itself,-improperly proffered, fails to provide new
. information of sufficient safety. significance to warrant re-opening a closed adjudicatory record.
L n
For allmof these' reasons, Applicant respectfully submits
!. 9 that the Joint Intervenors' motion for leave to reply must be denied and their reply brief rejected.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE l P- j n
,) ~
Br M . Giurchill, F . C'.
Dean D. Aulick, P.C.
Alan D. Wasserman Counsel for Applicant 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Dated: February 1, 1985 4
,1
- l. App. EXHIBIT 1 Hemmond (La.) Dolly Star, Tuesday, October 2,1934, Page 38 ikers' health insurance cants the teachers
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.of the atrike. . with lawyers tonight to discuss the imtU electlan 'dletricts for the board b trying to be !
policy states that you are an . health Insurance payments and , board's to members are set.
t with the employees active employee and wUl ramaln an Re n know where they scuve em odestin.'gistrar of Votes Melvin A federal judge declared the
. refusal to certify beard's reapporuonmcat plan un-Alng as important as minated,"ployee she said. tmul.- you are ler.
i rage " ~? *
- signatures on recall petitions constitutional in June because two l oard cannot afford to Most of the 700 school empicyees, against all 10 school board mem. ./ members Donald Cox and Fernand including all but a few Af the 330 bars. * * " - , Seenel, represent the same distnet.
ance costs of ert-
- teachers, went on strike' Aug. 38. ."We are going :o look into two -U.S. District Judge Peter Beer snot working.
They demand a $ percent general things: foring the re-election of all , ordered the board to draw up a new ardiaws
- ing, seyingiscan't expend that tf pay raise, can't which affor'd, ' and thecollective board said it board members and possible court jptan,butithaa notacted.
- action against Pedeaux." amid Joe Pedaanx last Friday got a tem-Farlough said, bargaining rights, which the board Hutchinson, co chainnan of the St.
Whitshead . cf the saldit firmly opposes parary order in which CistrictJudge
- ' John Parents
- Actinn Committee. C. WiUlam Bradley of Edgard cistion of Educators...' .All 15 schools remain open. but Pedeaux has asked a.. state judge . forbade etuployees and parents og the strikers, said a,most of the 6.300 students have been to throw out the reca!! petitions. from taking legal scuon against i nut allowed to ~ stayinghome. $2 - 'C ~
- Pedeaux told the court he eennot Pedeaux ' -for not certifying against . employeess.. 'Meanwhile, .. strikers plan to e..
meet certify signatures on recall petitions ' signatures art petitions. -
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. -aANGOLA. fa. t API - Two in - Celestine, ft,was convicted of the -urgue that under laulsiana's jury mates on death row in the 14uisiana Sept -13, Isa1 rape a' 'n d Telectior> process le who are
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' rPenitentiary - wiuie celestine and
- s rangulation of 81 yearold Mar, unalterably.
5 tarting Rault Sr. - have lost ap- cehanne Richard in Iafayette. He Penalty'are easily excluded to the death
.; from peals to the U.S. Supreme Court. %ad been scheduled to be executed juries. " . :- ~ .
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c.; ' clearing the way for new execution
.s dates tobeset/ W - i * ? April 30 but won tiroe for this appeal. ' ~ On the other hand lheis' aid, people
- Both inmates had been scheduled
'P '? e. Rault.~who
- prosecutors said had who arein favor of the desth penalty
{$.s mbenied 354,000 as an assistant can be escluded from murder trial to diein Aprilbut won delays so their comptroller for the lautstana 'luries *anly under limited cir-
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-." lawyers could go to the Supreme ' Energy and Development Corp. in cumstances. .cr; .- ;.
' Court which refused to hear the a cases Monday and, in effect, feit .New Orleans. was convicted of .
- Celestine, in a four. minute taped intact their convictfons and desth ,worktrqgthere,on MarchI,1982. killing Janie Francioni. O secreta t:5ial.said he was drunk and on drugs
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23 safetp~issu6s hang at Waterford NEVIORLEAN5 t AP) -Bull'de'rs vestign'tlon'to be chEked oUt for Es to do such work l '. 'i of the Waterford III nuclear plant at pcasible totimidatio.1, haraument.
- Among other things, LP4L was
.Taft were stoppy about quality " falsification or forgery. . ordered to verify the credentials of cont.rnt but faults found so far by Thissullincompletestudyalready r very Mpector ever on the 10 year federaf inspectors do not involve has consumed a million dottars and project anc* to reinspect work.done safety, the Nuclear Regulatory '10.000 commission staff hours. . by those found to be unqualified.
Commissionsays. '
It is unique in that it was irutiated "We can live with them," sold Crutchfield said the commission Dennis Crutchfield, head of the 61. ,,by the staff itself[nslasd of the staff "has the you er to ordernew lasting of reacting to' complaints filed by anti- any construction passed by
.studied member commission team the still unlicensed 82.1E that has nuclear and . public interest unqualified quality control in-or spectors, ev.en u it means t. earing up Ikilion plant beside the Mississippi '.v"ganizations.
CARD 5 They provided no new technical ' structure ta get at it.
River inst. Charles Parish.25 mtles issues to us,"said Crutchfield. '.
Ete cddress upstream from Ne v Orleerds. Cracks in the plant's massive Jay Hardson.' head of the team re:sforced concrete foundation were However, the report released that investigated quality control, found to be harmless, the report Monday reported that 23 issues 'said the prootems besettlog said. '
reenala unresolved, all of them could Waterforti 111 were relatively minor This laterim report was issued to tavolve piant safety, and the plant rampared to those of Midland, a keep the public Informed. Crut-f has not been given approval as safe. ' nuclear ' plant in Michlgan, or chfield said. There was no estiroate Crutchfield said no decision on an 'Zimmer,'a plantin Ohio. . of when the remaining issues will be s what they was making three unill 14uisianahad in operating license wtti be Power & reached
'Lisht, f . Askad it he referred mainly to the resolved, but he said be expects cw." which built the plant, satialies , paperwork thatirork.
should document LP&L to be ftned before the and of quality control Harrison the year thae to the stoppy project.
- e a divorcee, has commission concerns about those 23 replied: , . . Actually, much of the sloppiness from the twa Lasues. ~ e.
"In terms elqua. .lity in general." .
son who also is a The interim report issued by the traced to construr'!v contractors Lack of documented quality such as EBASCO $r/vtces Inc.
ins and a daughter commission staff Monday dealt with control w ' as a major issue Ire rather than LP&L, Nt Crutchfield wId the post of two irregularities. 347 allegations of construction vestigatore found that about 36 sold LP&L is responsible, ro6ar, percent of the people who had been dless, and want into the Of these. Crutchtleid said six hired as quality control and quality The LP&L plant is seven years clear leader. but remain open and nine have been assurance inspectors did not have befund schedule and 11 times over off ass the eeed ov nother e
- im* submitted to the NRC Office of In Jhe. background showing they knew cosL C
a b
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382
)
(Waterford Steam Electric Station, )
Unit 3) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicant's Answer in Opposition To Joint Intervenors' Motion For Leave To File' Reply" were served, by deposit in the United States mail, first class, postage prepaid, to all those on the attached Service List, this - lst day of February,1985.
Bruce-W. Churchill, F.C.
. Dated: February l', 1985' L' . _ , _
r-
.d'
'4 7
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
' LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382 OL
)
- (Waterford Steam Electric )
Station, Unit 3) )
SERVICE LIST
-Christine N. Kohl Sheldon J. Wolfe Administra.tive Judge Administrative Judge Chairman,. Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Board Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 W. Reed Johnson Harry Foreman
~ Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety.and Licensing Appeal: Board Board
.U.S. Nuclear' Regulatory Commission Director, Center for Population Washington, D.C. 20555 Studies Box 395, Mayo Howard A. Wilber University of Minnesota.
Administrative. Judge Minneapolis, MN 55455 Atomic : Safety and Licensing -
Appeal / Board Walter H. Jordan
'U.S. Nuclear Regulatory Commission'. Administrative Judge
~ Washington, D.C.
20555 . Atomic Safety and Licensing Board.
Sherwin E. Turk, Esquire 881 West Outer Drive
-Office of the. Executive Oak Ridge, TN 37830 LegalLDirector U.S. Nuclear Regulatory. commission Docketing & Service Section.(3)
Washington,LD.C. 20555 . Office of the Secretary.
EU.S. Nuclear Regulatory Commission
, Atomic Safety and' Licensing Washington, D.C. 20555' Appeal: Board Panel
!U.S.: Nuclear Regulatory; Commission ' Atomic Safety'and Licensing.
Washington, D.C.. 20555 Board Panel U.S. Nuclear Regulatory. Commission Washington, D.C. 20555
r LP&L Sorvica List-ASLAB 2'-
Page Two Mr._ Gary Groesch 2257 Bayou Road New Orleans, LA 70119 Carole H. Burstein, Esq.
445' Walnut' Street New Orleans, LA 70118 Lynne Bernabei, Esq.
Government Accountability Project l1555 Connecticut Avenue, N.W.
Suite 202 Washington, DC 20009
/
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