ML20005B173
| ML20005B173 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/25/1981 |
| From: | Bloom J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20005B170 | List: |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8107060405 | |
| Download: ML20005B173 (46) | |
Text
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y NTED CORRESPONDENCE %t S
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Ns UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h MA>' I l9gy [7 ,
k@g,ek BEFORE THE ATOMIC SAFETY AND LICENSING BOARD q f Ge 9 In the Matter of )
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CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OM & OL
) 50-330 OM & OL (Midland Plant, Units 1 and 2))
CONSUMERS POWER RESPONSE IN OPPOSITION TO THE NRC STAFF'S MOTION FOR
SUMMARY
DISPOSITION ON THE ISSUE OF QUALITY ASSURANCE I. INTRODUCTION In August, 1978, inspectors employed in the Midland quality assurance program, while monitoring the diesel generator building at Consumers Power Company (" Consumers Power") Midland site, detected building settlement in excess of that anticipated. The condition was.promptly reported to the NRC as ; significant construction deficiency. After investig'cion, Consumers Power identified the cause of the settlement -- inadequate soils compaction -- examined its quality assurance program to determine why the problem had not been discovered earlier and instituted changes and corrections in its program and its implementation.. A des-cription of the root causes of the quality assurance prob-lems, the actions taken to correct them and the programs implemented to prevent their recurrence in soils and other areas was submitted to the NRC in April, 1979 and again c
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supplemented in November, 1979.
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On December 6, 1979 the NRC Staff (the " Staff")
issued an " Order Modifying Construction Permits" (December 6,1979 Order) which suspended all soils and remedial work, based in part upon a conclusion that "the quality assurance deficiencies involving the settlement of the Diesel Gener-ator Building and soil activities at the Midland site ...
are adequate bases to refuse to grant a construction per-mit." (December 6, 1979 Order, Part III, p. 4). Through its Motion for Summary Disposition, the Staff now requests a ruling that as a matter of law the quality assurance de-ficiencies they allege existed at the Midland site would have justified the denial of Consumers Power's application for a construction permit.
In support of this, the Staff asserts there is no genuine dispute as to three sets of allegedly uncontroverted facts:
A. prior to December 6, 1979 certain enumerated quality assurance deficiencies constituted sufficient grounds for the issuance of their suspension order; B. these deficiencies constituted a " quality assurance breakdown" which caused inadequate soils compaction at Midland; and C. inadequate soils compaction caused.the un-anticipated settlement. (Staff Motion, Material Facts Statement, pp.-1-3).
Consumers ?ower submits that in light of the inaccuracies and omissions in the affidavits and documents s-
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() with which the Staff supports these assertions, the depo-sitions and other evidence on file in this. case and pursuant to NRC regulations, this Licensing Board must deny the Staff's Motion.
First, 10 CFR S2.749, the regulation under which the Staff-seeks summary disposition, precludes a Licensing Board from granting a request for a finding that there was an adequate basis "to refuse to grant a construction per-mit."
Second, even if this Board were empowered te deny a construction permit by summary disposition, such numerous genuine issues of material fact exist as to each item the Staff sets forth that, as a matter of law, a hearing must be held to resolve them.
II. FACTUAL STATEMENT A. History Of Soils Placement At The Midland Site.
Between 1975 and 1977 soils were placed at the Midland site in the area of the diesel generator building; construction of the diesel generator building began and was essentially completed in 1977. (Staf f Motion, Keppler Affidavit, Attachment 2, p. 7; Consumers Power Response, Cooke Affidavit). By October, 1977 all major Q-listed soils support activities were completed. (Consumers Power Res-ponse, Cooke Affidavit; see also Staff Motion, Keppler Affi-
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() davit, Answer to Question 5, p. 3 where it is noted that by March, 1979 " soils placement activities had been.substan-tially completed").
During this period from May 24 to May 27, 1977, the NRC conducted an extensive audit of the manner in which Consumers Power implemented its quality assurance program at Midland and concluded "that the licensee's program was an acceptable program and that the Midland construction acti-vities were comparable to most other construction projects."
(Staff Motion, Keppler Affidavit, Attachment 2, p. 7).
On August 21, 1978 the quality assurance moni-toring program of the Diesel Generator Building noted that the building settlement was more than anticipated. Consumers Power promptly notified the NRC, both orally and by.a 10 CFR 550.55 (e) (1) (iii) Report, of a potential significant deficiency in construction. (Staff Motion, Gallagher 8
Affidavit, Attachment 1).
B. Staff Investigations Conducted Prior To December 6, 1979 Do Not Disclose Any Breakdown In Quality Assurance.
The Staff conducted two preliminary investigations of the settlement problems, one in October, 1978 (Report 78-12, filed November 17, 1978, Staff Motion, Gallagher Affi-davit, Attachment 2) and a follow-up investigation from December, 1978 through March, 1979 (Report 78-20, sent to Consumers Power March 22, 1979, Staff Motion, Gallagher
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. Affidavit, Attachment 7). The purpose of these investi-gations was to provide the hAC with an evaluation of the Midland soils problem and determine (1) whether a breakdown in the quality assurance program had occurred; (2) whether the occurrence had been reported properly and (3) whether the. Final Safety Analysis Report (FSAR) which had been submitted by Consumers Power was consistent with the design
.and construction of the Project. (Staff Motion, Gallagher Affidavit, pp. 8-9).
None of the preliminary reports filed by Eugene Gallagher, the NRC' Inspector who conducted them (nor any of the later 1979 investigation reports by Gallagher)* contain a finding that a quality assurance breakdown had occurred.
While the reports note that the initial occurrence had been reported properly (Staf f Motion, Gallagher Affidavit, Attach-ment 4, p.-3), they do identify possible FSAR inconsistences.
(See Reports 78-12, 78-20, Staff Motion, Gallagher Affi-davit, Attachments 2 and 7).
Based or these reports, Gallagher concluded that (1).there was inudequate control and supervision of plant g . fill; (2) corrective action regarding nonconformances was inadequate; (3) construction specifications and design bases were not followed; and (4) interface between design organi-
- During 1979 Gallagher conducted three more investi-gations. (Staf f Motion, Gallagher Affidavit, Attachments 8, i
10 and 12).
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zation and construction was inadequate. (Staff Motion, (O'i Gallagher Affidavit at 10; December 6, 1979 Order).
Numerous NRC documents generated during the period from the discovery of the soils problem in August, 1978 to the issuance of the December 6, 1979 Order attest that even though the NRC had found alleged quality assurance deficien-cies, they did not conclude there was a quality assurance breakdown at Midland.
On December 14, 1978, James G. Keppler, Director of the NRC Region III Office, in a letter to Myron Cherry, counselor for certain intervenors in the Midland proceeding, wrote:
"[T]hese [ quality assurance] deficiencies [oc-curring since 1973 at Midland] were isolated rather than generic in nature, were resolved in a responsible manner, and did not represent a ser-ious breakdown in quality assurance." (Consumers Power Response, Attachment 1).
Robert E. Shewmaker was the NRC Senior Structural Engineer from the NRC Inspection and Enforcement Branch (I&E) providing primary technical assistance regarding the plant settlement. On February 6, 1979 he recorded in his notes of an internal NRC meeting that "the QA program is still intact." (Consumers Power Response, Attachment 2,
.Shewmaker Deposition Exhibit 21).
On February 15, 1979, an NRC. Summary Report from Keppler to H.D. Thornburg, Director, NRC Division of Reactor Construction and Inspection, reflected NRC Regio'4 III's (m. .
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"Although... [ Consumers Power] quality assurance program has undergone a number of revisions to strengthen its provisions, no current concern exist [ sic] regarding its adequacy." (Staff Motion, Keppler Affidavit, Attachment 2, p. 10).
It concludes:
"[I]t is our conclusion that the problems ex-perienced are not indicative of a broad breakdown in the overall quality assurance program. Ad-mittedly deficiencies have occurred which should have been identified earlier... but the licensee's program has been effective in the ultimate identi-fication and subsequent correction of these de-ficencies." Id. at 13.
A finalized version of th!s report, issued October 18, 1979 by Gaston Fiorelli (Chief of the NRC Reactor. Con-struction and Engineering Support Branch, Region III) and approved by all Region III quality assurance inspectors, including Gallagher, adopts the same conclusions. (Staff Motion, Keppler Affidavit, Attachment 3, p. 14). It further notes that even acknowledging the Midland soils problems
"[ Consumers Power] L2s taken action to correct the problems and to upgrade his [ sic] quality as-surance program and QA/QC Staff." Id. at 13.
"The RIII inspectors believe that continuation of (1) resident site coverage, (2) the Licensee overview program, (3) the Licensee's attention and resolution of identified problems in this report, (4) ceasing to permit work to continue when quality related problems are identified with construction activities and (5) a continuing inspection program by regional inspectors will provide adequate assurance that construction will be performed in accordance with requirements and that any signi-ficant errors and deficiencies will be identified and corrected." Id. at 14.
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e'~} In November, 1979, according to Shewmaker, the
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quality assurance branch of NRC's I & E Section had taken the position on the overall quality assurance program at Midland that:
"there were some minor items they wanted to see added in the way of a QA program to try and cor-rect the kinds of problems that I & E had identi-fied. But I don't think that they found any major defects in the program as such. (Consumers Power Response, Attachment 3, Shewmaker Deposition at 78).
Finally on. November 28, 1979 at a meeting attended by Keppler, Shewmaker, Thornburg, and others, Keppler according to Shewmaker, supplied , description of a quality 4
assurance breakdown:
"A major item not caught.in the QA system; one that comes up by an occurrence, NRC finding, allegation, etc." (Consumers Power Response, Attachment 4, Shewmaker Deposition Exhibit 13).
Shewmaker remembered that Keppler said "there had not been such a. quality assurance breakdown at the Midland site with respect to the soils issue." (Consumers Power Response, Attachment 3, Shewmaker Deposition at 108).
Notes of the meeting taken by Darl Hood, a Senior Project Manager in the NRC Division of Licensing, indicate that "I & E's position was that the overal.' QA performance
[was] acceptable because it identifies QA deficiencies."
(Consumers Power Response, Attachment 5, Hood Deposition Exhibit 15).
The first NRC document to conclude that the soils
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quality assurance problem constituted a " breakdown" was the
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December 6, 1979 Order. This, at least, creates a dispute as to a material fact, precluding summary disposition.
C. Consumers Power's Response To Soils Settlement Prior To December 6, 1979 Demonstrated A Commitment To Improving Its Qualicy Assurance Program And Its Implementation.
In meetings (See Staff Motion, Gallagher Affi-davit, Attachments 3 and 13) and through the submission of answers to questions propounded by the NRC pursuant to 10 CFR 550.54 (f) , (Staff Motion, Gallagher Affidavit, Attach-ments 9 and 14; Consumers Power Response, Attachment 6)
Consumers Power responded to the findings of the NRC's investigations.
The responses were framed in accordance with NRC requests.*- First, they identified root causes of the de-ficiencies in the Midland quality assurance program which
- Consumers Power presented its findings to the NRC subsequent to its response to 50.54 (f) Question 1 at a meeting on July 18, 1979. NRC's meeting notes indicate only 2 areas wherein the NRC questioned Consumers analysis: (1) the Staff found certain till specifications incorrect; and (2) the. Staff found' Consumers Power response concerning specification modification inadequate. (Staff Motion, Gallagher Affidavit, Attachment 13). Gallagher, in his affidavit, characterizes this as "several points of disagreement."
(Staff Motion, Gallagher Affidavit, p. 12).
Consumers Power redrafted its response taking into consideration the NRC concerns. (Consumers Power Response, Attachment 6, pp 23-18 to 23-19; 23-8 to 23-9.)
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contributed to or impeded tlie earlier detection of the settlement. Second, they described the actions taken or to be taken to correct the s$ils quality assurance deficiencies (remedial actions soils); the corrections taken or to be taken to correct the written quality assurance program (programmatic); the actions taken'or to be taken to preclude potential quality assurance problems in related areas other than soils (generic). (Consumers Power Response, Attachment 6, Response to 50.54 (f) question 23, Revision 4, pp. 23-2 to 23-5).
Third, in Part (2) of its question 23 response Consumers Power outlined the measures it took, including instigating a re-review program, to insure that any possible inconsistencies in the FSAR were remedied. (Consumers Power Response, Attachment 6, Part 2). Finally, in Part 3 of its response to question 23, Consumers Power detailed the con-tinuing improvements'in its quality assurance program and l
its implementation it had been making since 1977, describing t
each . action and i ts completion timetable. (Consumers Powers
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l Response, Attachment 6, Part 3).
In his affidavit, Gallagher references the NRC's request for question 23 information and Consumers Power res-ponse in his description of "what action was taken to de-t termine whether enforcement action [by the NRC] should be i taken:" ,
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(~) "On September 11, 1979 the NRC issued question 23 4 \/ which contained a request for additional quality assurance information. On November 13, 1979 Consumers Power Co. submitted revision 4.to the
- 50. 54 (f) submittals which contained their response to question 23 (Attachment 14) including specific corrective actions and commitments for implementa-tion of its quality assurance program" (Staff Motion, Gallagher Affidavit, question 15 at 12).
The affidavit goes on to assert the conclusion that the
" response to question 23 supports the allegation in NRC's December 6, 1979 Order Modifying Construction Permits (Attachment 15) that there was a breakdown in quality assurance." (Id. at 13).
Similarly, John Gilray, the principal NRC Quality Assurance Engineer in the NRC NRR Section, in his affidavit supporting the Staff Motion sets out the dates that Consumers Power submitted its responses to the NRC's S50.54 (f) ques-tions 1 and 23. Gilray goes on to say that he reviewed them. (Staff Motion, Gilray Affidavit at 2-3). He does not state the date upon which he began or completed that review.
Contrary to the implications in the affidavits, l the NRC took no action to determine the appropriate enforce-ment action based upon Consumers Power response to question l
! 23. From depositions it is clear that no one at the NRC had 1
! reviewed Consumers Power response to question 23 prior to l
l the issuance of the December 6, 1979 Order.- (Consumers l Power Response, Attachment 7, Gallagher Deposition at 68; l Attachment 8, Gilray Deposition at 47-50; Attachment 11, l
Fiorelli Deposition at 20).
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D. The Chronology Of Staff Consideration Of
'/ Soils Settlement Enforcement Options Demonstrates That.The Alleged Quality Assurance Deficiencies Were Never Regarded As A Basis For Suspension Of Midland Construction, Let Alone Denial Of A Construction Permit.
From the beginning of 1979, the Staff was engaged in a process of determining if any enforcement action should be taken in regard to the Midland settlement problems.
However, there is no evidence that the quality assurance deficiencies put forth on December 6, 1979 as a basis for the suspension order were ever considered prior to that date as a reason for suspension or as a reason for a denial of a construction permit.*
On March 6, 1979, Keppler in a telephone conver-sation with Shewmaker, recapitulated an earlier position that a "show cause" order, to stop work at Midland, was necessary. (Consumers Power's Response, Attachment 9, Shewmaker Deposition Exhibit 14).
But no show cause order was issued. Instead of that enforcement action, the NRC decided to seek further I information from Consumers Power through the issuance of a 50.54 (f) question concerning identification of the root
- During 1979, prior to the issuance of the December 6,
- 1979 Order, with full knowledge of the-Staff, Consumers l Power placed the surcharge on-the diesel generator building l
and removed it. (Consumers Power Response, Attachment 14, i Hood Deposition Exhibit 8).
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() ;causes of the quality assurance deficiencies and the actions taken or proposed to be taken to correct them. (Staff Motion, Gallagher Affidavit, p. 12; Consumers Power Res-ponse, Attachment 3, Shewmaker Deposition pp. 53 and 60).
Future decisions for enforcement action beyond that were te be based on Consumers Power's response to the question. Id.
As'noted, Consumers Power responded to this in. April, 1979.
By April, 1979, the NRC considered issuing an "en-f forcement package" of civil penalties, mostly pertaining to alleged material false statements in the FSAR Consumers Power had submitted. (Consumers Power Response, Attachment 10,-Hood Deposition Exhibit 19). No quality assurance deficiencies were mentioned.
On September 11, 1979, the NRC issued a second, supplemental 50.54 (f) question pertaining to quality assur-ance.(question 23). As noted, Consumers Power replied to this, by November 13, 1979, detailing the corrective actions taken and proposed. As discussed, no one at the NRC.re-viewed this response prior to December 6, 1979.
On November 28, 1979, the NRC officials (Keppler,
.Thornburg, Hood, Shewmaker, and others) met to discuss whether.further NRC enforcement actions were necessary. Al-i though they discussed the alleged quality assurance deficien-cies, their considerations mostly concerned issuing a show cause order to seek more technical information concerning t
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v engineering and. design criteria for the proposed remedial fixes from Consumers Power. (Consumers Power Response, Attachment 11, Fiorelli Deposition at 13-17). Two or three smaller meetings were held after this to prepare the "me-chanics of the order." (Consumers Power Response, Attach-ment 12, Thornburg Deposition pp. 32-35).
On December 6, 1979, the NRC issued an " Order Modifying Construction Permits" which susp' ended all soils activities and any remedial actions associated with them, after purporting to conclude that "the quality assurance
. deficiencies involving the settlement of the' Diesel Gen-erator Building and soil activities... are adequate bases to refuse to grant a construction permit...." Id. at 4.
III. ARGUMENT A. The Staff Carries The Entire Burden Of Proving Its December 6, 1979 Order By Summary Disposition.
What is at issue here is not whether Consumers Power will ultimately prevail after an evidentiary hearing with respect to the adequacy of the quality assurance pro-gram and its implementation at Midland. The only issue the Staff's motion presents is whether there is sufficient dispute as to the material facts so that such a hearing must be held.
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In order to deny Consumers Power a hearing as to (v"}-
the adequacy of the quality assurance portion of the NRC's December 6, 1979_ suspension order,-the Staff must conclusively prove it is entitled to judgment, as a matter of law, there being no genuine issues remaining for trial. Pacific Gas &
Electric Co. (Stanislaus Nuclear Project Unit No. 1), LBP-
- 77-45, 6 NRC 159, 163, (1977). The mere possibility of a genuine issue will defeat the motion. Public Service Electric ~and Gas Company (Salem Nuclear Generating Station, Unit 1) LBP-79-14, 9 NRC 557 (1979). The existence of contrary inferences from undisputed facts will defeat the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Morrison v. Nissan Motor Co., Ltd., 601 F.2d 139, 141 (4th Cir. 1979).
Consumers Power bears no such evidentiary burden at this point in the proceeding. It need not show, as must the Staff, that it will prevail on the factual issues; it need only point out factual issues exist. Stanislaus Nuclear
-Project Unit No. 1, supra, at 163. It has no responsibility as the Staff alleges, to " place" a fact "in issue." Indeed, "if a movant's papers are insufficient to establish the absence of a genuine issue of material fact, the merit of summary disposition is foreclosed without regard to the content of the answer opposing disposition." Cleveland Electric Illuminating.Co. (Perry Nuclear Power Plant, Units bm
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'w) 1& 2), ALAB-443, 6 NRC 741, 752-54 (1977).
Summary disposition is a drastic measure, and the rules under which it is granted reflect this, and are given strict application. Perry Nuclear Power Plant Units, supra.
Any evidence is rigorously construed against the moving party, each inference from the evidence is construed in favor of the opposite party. See Diebold, supra.
B. Section 2.749 Of The Commission's Rules Of Practice Precludes This
-Board From Granting The Staff's Motion For Summary Disposition.
Quite apart from the basic disputes regarding the material facts which allegedly support the Staff's Motion, the Staff is simply not, as a matter of law, entitled to the relief it seeks.
10 CFR S2.749(d) states that no summary dispo-sition can be had on the ultimate issue of whether to grant or refuse to grant a construction permit:
"However in any proceeding involving a construc-tion permit, [ summary disposition]...may only be used for the determination of specific subordinate issues and may not be used to determine the ul-timate issue as to whether the permit shall. issue."
The Staff's request for summary disposition is predicated on a determination of this ultimate issue -- whether as of December 6, 1979, the quality assurance deficiencies, "if known in 1972 would warrant the Commission to refuse to i
grant the construction permits" (Staff's Motion.at 2).
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Indeed, the affidavit of Darl Hood purports to establish, in
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inadmissable conclusory fashion (see footnote p. 40, infra) that the standards expressed in 10 CFR 550.100 for revo-cation, suspeasion or modification of a construction permit have been met. Since the issue of suspension is equivalent to failure to grant a construction permit, and thus the
" ultimate issue" within the meaning of 10 CFR S2.749(d), the motion must be denied.
In Public Service Company of New Hampshire (Sea-brook Station Units 1 and 2) LBP-74-36, 7 AEC 877,.(1974) a motion for summary disposition requested a Board to find that an applicant's description of the tunnels to be used for cooling water and the ultimate heat sink was so inad-equate that it did not meet the requirements of 10 CFR 550.34 (a) . The Board denied the motion, holding, "the language in 10 CFR S2.749(d) barring summary disposition on
'the ultimate issue as to whether the permit shall be is-sued' precludes granting the motion."- Id. at 879.
In Detroit Edison Company (Greenwood Energy Cen-ter, Units 2 and 3 LBP-75-56, 2 NRC 565, (1975) a Licensing l
Board. refused to grant a motion for summary disposition l
l which asserted applicant's want of fiscal soundness based on applicant's failure to satisfy the Commission's financial requirements. That Board denied the motion because a i
l negative finding on the applicant's financial character t
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would effectively deny the entire application, which would
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x-be "in conflict with the express provirion of $2.749 (d) . "
Id. at 568-69.
Similarly in this case a finding, as the NRC (Material
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requests in its Material Facts Attachment item "A" Facts"), that "the following quality assurance deficiencies involving the settlement of the diesel generator building and soil activities [ sic] at the Midland site are adequate bases to refuse to grant a construction permit" is imper-missible under 52.749. Section 2.749 prohibits such judg-ment on an ultimate issue at this stage in the proceeding and the Staff's motion must be denied as a matter of. law.
C. Genuine Issues Of Material. Facts Exist As To The Significance Of Quality Assurance To The Soil Settlement At Midland And As To Whether Alleged Quality Assurance Deficiencies Warranted The. Issuance Of The December'6, 1979 Order.
Even if the Board is empowered to_ deny a construc-tion permit on summary disposition, such denial would be inappropriate in this case. An evaluation of the documen-tation with which the Staff supports its motion against other evidence in this case, and the legal standards upon which the motion relies, creates such numerous genuine issues of material fact that as a matter of law only a hearing can resolve them.
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\/ permit can be denied is not met by the facts set forth in the Staff's Motion.
The standard upon which the Licensing Board must measure the Staff's December 6, 1979 Order is found in 10 CFR 550.100:
"A... construction permit may be revoked, suspended or modified...because of conditions revealed by the application for license . cur statement of fact or any report,. record, inspection or.other means which would warrant the Commission to refuse to grant a license on an original application."*
Thus, to justify the quality assurance portion of the December 6, 1979 Order, the Staff on December 6, 1979 must
'have had information regarding Midland's quality assurance program which if known at the time of the issuance of the original permits would have sufficed to deny those permits.
The Appeals Board in Southern California Edison Company, et al. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268, 1 NRC 383, 401 (1975) set out the conditions under which construction permits een be denied or suspended:
If the deficiencie ...found either [1] posed a F
hazard during construction [2] needed to be corrected before construction took place or [3]
were uncorrectable or [4] if significant environ-l l
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- The December 6, 1979 Order " modified" the Midland I Construction Permit by suspending certain construction
, activities, subject to Consumers Power's hearing rights.
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- iUnless'the Staff's. documentation supporting its motion con-
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tains information showing-that, as a matter of law, at'least b one_of these_four conditions existed as of December 6, 1979, l sits ~ motion must be denied.
Consumers Power submitsLthat it does not. The i
. Staff's motion and its documentation contains no evidence or allegations whatsoever that the implementation of the Midland quality assurance program on December 6,.1979 posed a hazard'
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or threatened environmental harm'during construction. At
!. _ bestfi'ts_ gist is that. deficiencies existing prior to December l- .. .
- j. ;6, 1979'either needed-to be corrected before construction
-continued or were uncorrectable. As the discussion below points out_the documentation the Staff presents is insufficient f
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- *- These are based on the standards in.l'0 CFR S50.35 Lgoverning the issuance of construction permits:
i-h (a) . . .the Commission mayfissue a construction
! ~ permit if the Commission finds that (1) the ap-l- plicant_has: described the proposed design...and l- has. identified the major features or components
._,- incorporated thereinlfor the protection of the l _ health and safety.of-the public...; and (4) on the-
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I basis of the foregoing, there is a reasonable L ,
assurance that . (i) such safety' questions will be satisfactorily' resolved at or.before the latest l
date stated-in the application for completion of
! construction of'the proposed facility and (ii)
! taking:into. consideration-[ environmental concerns],
the proposed facility can be constructed and
( operated at_the proposed location without undue L--
l risk to the health and safety of the public."
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T'N. to sustain such findings as of December 6, 1979. On the V
contrary, strong evidence exists that as of December 6, 1979 any prior quality assurance deficiencies at Midland had been corrected sufficiently to permit construction to continue and these' corrections had been presented to the Staff.
(2) Genuine issues of material facts exist as to the Staff's basis for. issuing the December 6, 1979 Order.
As noted above, the Staff's Motion incorrectly states the standard under which the grant of a construction permit can be refused. Moreover, an examination of the Staff's McL1on and documentation against the proper stan-dard, shows that there exists substantial issues of material fact concerning the Staff's basis for issuing the December 6, 1979 Order.
(a) The Staff's Motion uses an incorrect standard in justifying issuance of the December 6, 1979 Order.
The Staff's Motion characterizes its support-ing affidavits as presenting " evidence that prior to December 6, 1979" the quality assurance deficiencies were an l-adequate basis for their December 6, 1979 Order. Thus, the Staff is alleging it must only prove that anytime before it issued its order suspending work on December 6, 1979, qual-ity assurance deficiencies existed which would.have warranted the denial of a construction permit. As San i Onofre makes clea r, the standard for suspension of.a con-(m
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(~} struction permit is not whether at any time during construc-
%j-tion deficiencies exist. Rather, it is whether at the time of the issuance of the suspension order did the licensee have to take.some further action to solve specific problems before construction could continue safely.*
The thrust of the construction permit standard is on the remedy of the problem, not the fact of the problem itself. To deny a permit each time a problem occurred would Ebe to denigrate the processes of review built into the construction permit concept. See Public Service Co. of New Hampshire (Seabrook Station Units 1 and 2) LBP-74-36 7 AEC.
877, 878-79 (1974). As noted in San Onofre, "once a utility
- The Staff apparently was aware of the correct standard to apply. Keppler in discussing the 1974 Midland show cause hearing stated:
"[T]here werentwo considerations that were in-volved in that hearing. The first consideration was whether or not the licensee had taken suf-ficient action to achieve compliance with respect to specific problems that had been identified by the NRC.
And the second issue... was whether there was reasonable assurance that the quality assurance program would be effective in the future...."
(Consumers Power Response Attachment 13, Keppler Deposition at 22).
Thus, as Keppler notes the standard is not as the Staff now suggests "were there problems" but were the prob-lems solved and was there reasonable assurance t..e program would continue safely in the future.
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company is informed that an aspect of its application is (J~'t unacceptable, it is-free to attempt to modify its proposal."
San Onofre, supra, 1 NRC at 400. Thus in this case the Staff must prove that as of December 6, 1979 they had reason for the issuance of their suspension order considering the quality assurance program and its implementation as of December 6, 1979, not that suspension might have been appro-priate sometime prior to that date had no corrections been attenipted.
The Staff's position - that they only need show that deficiencies-existed at sometime prior to December 6, 1979 would disregard the status of the Midland quality 1
assurance program as of the date of its order. It would ignore the corrective actions taken by Consumers Power as of that date and it would neglect any evaluations.whether construction could continue safely.
In light of the construction permit process, such 1 a position borders the absurd.
A literal reading of the Staff's articulation of the suspension order standard would mean that any deficiency which remained uncorrected for any amount of time after a construction permit issued, even if the deficiency were corrected as of the issuance of a suspension order, would justify that suspension order.
Thus if a permit were issued in 1972, and a signi-
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ficant construction deficiency occurred in 1973, which the
(}
licensee corrected in 1974, the NRC would be justified in 1981 in suspending the licensee's construction permit, even though at the time of the suspension corrections had already solved the problem and there were no consequences to. future construction.
By not explicitly addressing the status of the 4
quality assurance program as of December 6, 1979, the Staff's J
motion invites such an absurdity. By not dealing with the program and implementation as of December 6,.1979, the Motion and its supporting documentation leave open numerous
- questions as to the reasons for the Staff actions. Such questions can only be explored at an evidentiary hearing.
(b) When measured against the proper standard, genuine issues of material fact exist as to the basis for the
- Staff's December 6, 1979 Order.
The Staff's Mction and documentation present only 4
minimal evidence that the Staff was even aware of the status o of the Midland quality assurance program as of December 6, 1979. This evidence is contained in Gilray's and Gallagher's
-affidavits. From both affidavits it can be inferred that the basis of the December 6, 1979 Order was their review of l.
Consumers Power's complete response to question 23, and a
[ decision that it was inadequate.
- Gilray's statement is framed so as to imply that i
j he reviewed question 23 upon its submission by Consumers l
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,. - . . - - - . . - , _ - . . . - . . . - , - . - - . - , . . - - . . . . . ~ . , _ - . . - . -
Power in November, 1979.- (See Staff Motion, Gilray Affi-(~}
s_-
davit p. 2-3). Galla*;her's affidavit is similarly struc-tured to at least imply someone at the NRC reviewed the material. (See Staff Motion, Gallagher Affidavit. p. 12).
However, this inference is insufficient support for the Staff's position. .First, as noted supra, in the case of summary disposition, if two contradictory inferences are available from the facts, the inference most favorable to the party opposing the motion must be accepted as true.
Diebold, supra. A close reading of Gilray's response dis-closes that he in fact does not give the date of his review; Gallagher never explicitly states question 23 was reviewed at all. The absence of this crucial information gives rise to the inference that as of December 6, 1979 no one at the NRC had reviewed Consumers Power's response to question 23.
If no one actually made such a review, there can be no basis for the assertion that the quality assurance corrections, completed and proposed were inadequate to permit construc-tion to continue.
In fact evidence exists to show that no one at the NRC had reviewed Consumers Power'c corrections of the qual-ity assurance deficiencies as of December 6, 1979.
As of November 17, 1980 Gallagher stated neither he nor anyone else in his section of the NRC 'T & E) had reviewed Consumers Power's question 23 response. he stated A
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() that it was only just being reviewed by Gilray from the NRC's NRR section.* (Consumers Powers Response, Attachment 7, Gallagher Deposition at 68).
Gilray stated in'his deposition that he had re-
+
viewed at least a portion of Consumers Power's response to question 23 in August and September, 1980. (Consumers Power's Response, Attachment 8, Gilray Deposition at 47-51).
To the extent these facts conflict with the in-formation in the affidavits alone they warrant a denial of the summary disposition and a hearing to resolve the con-flict.
To the extent these facts demonstrate the Staff had no knowledge of the state of Consumers Power's quality assurance. program and implementation when they issued the December 6, 1979, they raise genuine issues of material facts as to:
the state of the Midland quality assurance program and its implementation as of December 6, 1979;
- This response precluded Consumers Power from questioning Gallagher as to his opinions on the adequacy of the corrections. If in fact Gallagher's views as to the adequacy of' question 23's response did. form the basis of the December 6, 1979 Order, his deposition testimony deprived Consumers Power of their right to cross-examine on this matter. On this basis alone a hearing on the issue is necessary. Cf. Bergeron v. State Farm Mutual Auto. Ins.
Co., 198 F.Supp. 723 (E.D. La. 1961); cf. Colby.v. Klune, 178 F.2d 872 (2d Cir. 1949).
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the need for corrections before construction
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\- could continue as of December 6, 1979; the adequacy of the corrective actions taken, initiated and proposed as of December 6, 1979; whether the quality assurance deficiencies were uncorrectable as of December 6, 1979; whether a quality assurance " breakdown" occurred as of December 6, 1979; whether the quality assurance deficiencies
" caused" the inadequate soils compaction at Midland; whether it is material to this Motion that inadequate soils compaction caused Midland's settlement problems.
(3) Genuine issues of material fact exist as to the state of the Midland Quality Assurance Program and its implementation as of December 6, 1979.
The Staff Motion and list of " Material Facts as to Which There Is No Genuine Issue to be Heard" (" Material Facts") incorrectly describe the state of Midland's quality assurance program as of December 6, 1979. While the Staff claims to have adopted as " admissions" by Consumers Power the description of the status of the quality assurance deficiencies in Consumers.Pcuer's~ response to question 23 (See Staff Motion, Gallagher Affidavit at 13) the Staff has failed to include all the relevant data from the response. The Staff's Motion merely lists quality assurance problems in the soils area which occurred at one time or anothe: prior to December 6, 1979. Some of those problems had occurred in 1975-77,
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(J were known to the Staff in 1978 and had been corrected by December 6, 1979. There is no attempt in the Motion to describe whether that deficiency was still part of the program as of December 6, 1979 or whether any corrective action had been taken or proposed or whether these actions were inadequate to their purposes.
For example, the Staff states that there existed
" inconsistencies between construction specifications and consultant reports...between 1973 through the substantial reduction in soils construction during 1978-1979 without correction." (Staff Motion, Material Facts, A.l.). This is incomplete and thus incorrect.
As Consumers Power's response te question 23 noted, the situation as of December 6, 1979 was far dif-ferent:
- 1. A quality assurance deficiency has been identified in the possible interpretation problems resulting when the Dames & Moore-Consulting Report, containing specification information conflicting with that in the PSAT, was attached to the PSAR. As the response to question 23 notes "the information contained in the consultant report was subject to being misconstrued as a (construction] com-mitment." Therefore, the Staff description of this problem is even initially incorrect:
one consulting report was involved -- Dames &
Moore's -- not several as the Staff list of Material Facts states.
- 2. Immediate corrective action was taken to remedy the problems in the soils area. The Dames & Moore report was reviewed, its recom-mendations identified and dispositioned.
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(")' 3. By December 1, 1979 Engineering Department Procedure 4.22 was revised to preclude re-petition of similar deficiencies: the pro-cedures now required that only those parts of consultant reports which were to be specific commitments in a Safety Analyses Report (S AR) were to be included in the text of the SAR.
- 4. Action was taken to insure that no other inconsistencies existed between the construc-tion specifications in the SAR and other consultant reports. Consultant Reports were not attached to the PFAR but portions of them were extracted and incorporated into the FSAR text. A program was instituted to re-review the FSAR commitments tc assure that the commitments were adequately reflected in project design documents. (Part 2 of Consumers Power's response to question 23 more fully describes this.) (See Consumers Power Response, Attachment 6).
As the above discussion notes as of December 6, L
1979: a quality assurance deficiency had been identified, immediately corrected, programmatic changes had been in-stituted to preclude further problems, similar items re-viewed to determine if the problem had implications outside of the soils area and programs developed to prevent such problems.
Consumers Power submits that in this instance for this item there would be sufficient information to find that no construction hazard was posed, the corrective actions needed had been accomplished and no environmental concerns existed.
Yet the Staff,-describing none of this, cites this item as an example of a quality assurance deficiency which would warrant the refusal of a construction permit. Certainly, it rs L]
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cannot be said that the suspension of soils work was indis-(m)
.putably justified as of December 6, 1979 because of this problem. In fact, this problem no longer existed as of December 6, 1979.
The above cited example is not isolated. Each of the 13 quality assurance deficiencies cited by the Staff in paragraph A of it " Material Facts" Statement and the af-
'fidavits supporting its Motion is similarly inadequately described. An analysis similar to that done above of each allegedly uncontroverted material fact the Staff lists'gives rise to a multitude of genuine issues of. material facts j which cannot'be disposed of without a hearing. (See Consumers Power Response to the Staff's list of Material Facts, item Al through A13).
(4) Genuine issues of material fact. exist as to whether the Quality Assurance deficiencies had been adequately corrected as of December 6, 1979.
As set out supra, the Staff has disregarded the
(
complete description of the Midland quality assurance pro-gram as of December 6, 1979. Thus, the Staff's Motion fails to address the issues of whether as of December 6, 1979: (a) l l corrections were needed.to be taken before construction I could continue; (b) the actions implemented and proposed I were adequate to correct the deficiencies; and (c) the deficiencies were such that.they were uncorrectable.
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(a) There are. disputed material facts as to the necessity for changes in the quality assurance program before construction could continue.
The Staff's Motion and its associated documentation never confront the issue of why, given the existence of the quality assurance deficiencies, there was a need to remedy them before construction could continue. -Rather, evidence shows that as of December 6, 1979 the NRC believed that (1) soils activities at the site were completed and (2) the quality assurance " implementation" deficiencies only related to soils activities. - Keppler in his affidavit supporting the NRC Motion states:
"The deficiencies identified with respect to implementation of the quality assurance program were limited to soils work. Since the original soils activities had been substantially completed, no attempt was made at this time to stop soils work." _Id_ . at 3.
The Staff presents no evidence that any of the remedial work relating to the settlement involved any quality assurance deficiencies. Thus, the Staff has not shown that as of December u, 1979 even minimal corrections were 1.eeded before construction could continue.* Indeed, an
- As of December 6, 1979 Consumers Power remedial work required some soils placement in the tank farm area.
However, in order for this to be significant to the Staff's Motion there must be a showing that the quality assurance deficiencies the Staff claims are still uncorrected would somehow affect this work. No such showing has been made.
()
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f~') -examination of the events from August, 1978 to December, v
1979 shows that even before the Staff had information con-cerning the corrections to the quality assurance problems, they had. determined no show cause, work-stopping order was necessary for reasons relating to quality assurance. (See discussion, supra, regarding chronology of the Staff's decision to file the December 6, 1979 Order).
(b) There are disputed material. facts concerning whether the actions taken by Consumers. prior-to December 6, 1979 were adequate to correct the Quality Assurance deficiencies.
Based on the corrective actions taken and proposed r
in Consumers Power's restjonse to question 23, no quality assurance deficiencies existed as of December 6, 1979.
Thus, even if soils work had been contemplated after December 6, 1979, there was no need to suspend it.
Nothing in the Staff's motion directly contradicts this position because nothing in the motion nor its sup-porting affidavits directly discusses the actions taken by Consumers Power to correct the alleged deficiencies in quality assurance implementation. Only an inference in the aff davit of John Gilray even indirectly contravenes the t
idea that the corrective actions were inadequate.
In relation to Consumers Power response to ques-tion 23 Gilray states:
"I reviewed and evaluated the soils problem...to determine if CPC had given sufficient attention I'j v
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( ') to determining the root causes of the soils problem and to identify adequate corrective actions to preclude recurrence. I reviewed CPC's response to question 1 which was submitted on April 24, 1979..., and their response to question 23 which was submitted on November 13, 1979.
To date we have not received a satisfactory response from CPC to question 23. Based on my evaluation of the responses to questions 1 and 23 provided by CPC, I-have concluded that prior to December 6, 1979 quality assurance with respect to soils work at the site was not implemented in accordance with the docketed quality assurance program descriptior previously approved...."*
(Staff Motion, Gilray Affidavit at 2-3).
The hidden implication in this statement is that Gilray in
-finding the response to question 23 unsatisfactory, finds that the corrections taken and proposed in it are unsatis-factory. However, this inference, as a matter of law, is insufficient to support a finding that Consumers Power's re-medies of alleged quality assurance deficiencies were inad-equate.
Any affidavit, even the affidavit of an expert, j must supply the basis upon which its assertions and con-clusions' rest. Bsharah v. Eltra Corp., 394 F.2d 502 (6th l *'
.This conclusion-conflicts with the conclusion the
! NRC made after an extensive audit of a quality assurance l implementation at Midland in May, 1977. (Staff Motion, Keppler Affidavit, Attachment 2, p. 7). During this time, the soils placement activities which gave rise to the settle-ment problems occurred. (See Consumers Power Response, Cooke's Affidavit Appendix I).
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Cir. 1968) (the unsupported conclusion in an affidavit that
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a grievance proceeding in a labor case had " broken down" was found to have no probative value); see also Citizens Environ-mental Council v. Volpe, 484 F.2d 870 (10th Cir. 1973),
cert. den., 416 U.S. 936 (1973).
Nowhere in his affidavit does Gilray provide the basis for his " conclusion" that the question 23 response was not " satisfactory." He never describes the type of " eval-uations" he made. He does not out3'.e which items from his evaluations made him " conclude" that the quality assurance implementation prior to December 6, 1979 was inadequate.
The conclusory nature of this statement alone raises funda-mental questions which can only be resolved at hearing.*
- Gilray's implied conclusion in his affidavit that quality assurance implementation is still inadequate conflicts with '..l. 1eposition testimony.
In his affidavit he states that question 23 has not been answered satisfactorily. When this issue was probed at his deposition, he stated that it was not the quality assurance implementation per se he found inadequate only Consumers Power's question 23 response: "I'd go as far to say that I would find it acceptable if the right information was provided in question 23. I see the imple-mentation there, the organizational element there and it just hasn't been properly reflected and described in the response." (Consumers Power Response, Attachnent.8, Gilray Depesition at 34).
This discrepancy presents several issues which can only be resolved through hearing. Gilray's affidavit bases his conclusion that quality assurance implementation was inadequate prior to December 6, 1979 on his review of Consumers Power's response to question 23. Based on his deposition (Footnote continued on p. 35)
O(3 _ ,
In fact NRC documents present an opposite picture.
(h As of October 18, 1979, the NRC Region III's position was that there was no need for a suspension order because pro-posed corrective actions were adequate. In a report ap-proved by Region III inspectors, including Gallagher, they asserted that if Consumers Power met 5 conditions
- there would be adequate assurance that construction would be
" performed in accordance with requirements and that any significant errors and deficiencies [would] be identified and corrected." (Staff Motion, Keppler Affidavit, Attach-ment 3, at 14). The Staff motion discloses no evidence that those 5 conditions had not been met as of December 6, 1979.
(c) There are disputed material. facts as to whether the deficiencies were uncor-rectable.
The Staff Motion and its documentation fail to directly address this issue as well. No direct evidence has been proffered in the affidavits or exhibits to demon-(Footnote. continued from p. 34) testimony he had information outside of Consumers, Power's response to question 23 to support a finding that the qual-ity assurance implementation was adequate. If this is so, it undermines the December 6, 1979 Order and presents a conflict which must be solved through hearing.
- The five conditions were the continuation of (1) resident site coverage; (2) the Licensee overview program; (3) the Licensee attention and resolution of identified problems in this report; (4) ceasing to permit work to continue when quality related problems are identified with construction activities and (5) a continuing inspection program by [NRC) required inspectors.
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v strate that the quality assurance deficiencies they allege were "uncorrectable." To the contrary, the evidence adduced at the depositions indicates the Staff believes that Consumers Power has in fact remedied any quality assurance deficiencies.
(Consumers Power Response, Attachment 8, Gilray Deposition at 34).
The closest the Staff comes to this issue is its suggestion, in the Motion itself, that this Board take official notice of Consumers Power's " prior record of quality assurance performance discussed in previous decisions,"
(Staff Motion at 5-6), indirectly implying that some sort of extraordinary remedy may be necessary in this case. How-ever, the Staff's request for official notice is so inade-quate that it is insufficient on its face.
First, the Staff's request fails to satisfy the minimal requirements of 10'CFR S2.743(i) which, in providing for " official notice" in NRC proceedings, requires "each fact officially noticed [to]...be specified in the record with sufficient particularity." The Staff has not specified any particular facts for the Board to take official notice of, but merely references general. language from an Appeals Board decision.
Second, even if the Staff were to particularize the wording it sought to be " noticed", their request would fail. The type.of facts the Staff wishes to have this Board e-N,,T)
officially notice clearly falls outside the scope of infor-
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mation admitted under S2.743(i), which restricts itself to facts "of which a court may take... notice or of any tech-nical or scientific fact within the knowledge of the com-mission as an expert body." The language in earlier de-cisions the Staff cites is not a scientific or technical fact or an item a " court may take judicial notice of."
In order to be a fact "a court may take judicial notice of," the item must fall within the purview of Federal Rule of Evidence 201. Rule 201 permits notice only of
" indisputable adjudicative facts (i.e. those not subject to reasonable dispute)." 10 J. Moore, Federal Practice 1201.10 (2 ed. 1979).
An adjudicative fact is one which could be intro-duced into evidence before a jury. 10 J. Moore Federal Practice 1201.20 (2 ed 1979). This would include " record findings" which served as a bases for an earlier determina-tion, (Safeway Stores, Inc. v. Ff eral d Trade Comm'n, 366 F.2d 795, 802-03 (9th Cir. 1936), cert. denied 306 U.S. 932 (1967)) or even NRC documents or specific NRC inspection reports. See, e.g., Duquesne Light Company (Beaver Valley Power Station, Unit 2) ALAB 240, 8 AEC 829, 834 (1974); Duke Power Co.-(Catawba Nuclear Station Units 1 and 2) LBP-74-22, 7 AEC 659, 667 (1974). A passing reference to past licensee conduct, as cited by the Staff, certainly is not within this p.,
category.
~( )
Nor can the subject matter the Staff seeks " noticed" be deemed " indisputable." Under the federal rules and NRC practice, if there is a question as to whether.a fact, part of the record in one proceeding, can be introduced as "in-disputable" in another proceeding, the parties to the second proceeding must be given an opportunity to contest it. K. Davis, Administrative Law of the Seventies S15.00 8 (1st ed 1976).- Use of summary disposition procedure would preclude Consumer's Power from contesting such facts here.
The Staff reliance on the use of official notice in Beaver Valley Power Station is misplaced. The question here is not whether a licensee's prior quality assurance performance is relevant to the issue of future quality assurance performance, but rather what sort of factual information demonstrating the performance can be " officially noticed" pursuant to NRC Ruler.
The Beaver Valley Board was careful only to accept l
notice of particular adjudicative facts -- NRC investigation reports -- noting that the strength of their reliance on l
l them related to the extent they were "made part of the l
record by way of supplemental proceedings," affording the j
applicant full opportunity to protect its interest through a
- hearing. Beaver Valley 8 AEC at 834.
( The NRC Staff's request for official notice here
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p is neither precise nor does it concern indisputable ad-('*)
v judicative facts. It must be rejected.
(5) Genuine Issues Of Mate 1(al Fact Exist As To Whether A Quality Assurance Breakdown Occurred And The Significance Of That Con-clusion.
The Staff's list of Material Facts, item "B,"
asserts that, as a matter of law, "this [ sic] quality as-surance breakdown cause { sic] inadequate compaction of the soils at the Midland site." The statement cannot be clas-sified as an " undisputed" fact in this case: first, because it contains an assumption -- that there was a quality as-surance breakdown -- which is unsupported by the record; and second, because it seeks judgment on an issue -- causation --
which is inappropriate for summary disposition.
(a) The Staff offers no support for a finding that a " Breakdown" occurred.
The only evidence the NRC supplies which charac-terizes the seriousness of the quality assurance deficien-cies is found in Gallagher's affidavit. He concludes that the deficiencies resulted in a " breakdown" in the quality assurance program which " caused" the settlement problem.
j No other affidavit makes such a statement. Keppler's I
affidavit merely asserts that the implementation of the Midland quality assurance program was " ineffective" in I regard to soils. (Staff Motion, Keppler Affidavit at 3),
( Gilray states that the Midland quality assurance program
. prior to December 6, 1979 was "not adequately implemented"
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1 Nowhere in his affidavit does Gallagher supply factual reasons to support' his bald conclusion that a quality
+
assurance breakdown occurred. Further, such a conclusion
, conflicts with other evidence in this case.
Neither Gallagher nor any.other Staff evidence provides a definition of the concept of " breakdown". With-out a definition of " breakdown", it is impossible to measure
! the significance of quality assurance deficiencies or why
'these alleged quality assurance deficiencies could be considered to constitute a " breakdown." As such, Gallagher's assertion that a breakdown is conclusory and must be disregarded.
] Esharah v. Eltra 133. , supra, (holding that statements in affidavits asserting that no grievance procedures existed and thus there was a " breakdown" of the procedures were 4, -
conclusions and without probative value).*
Other evidence in this case, notably statements
, and documents provided by the Staff clearly presents the inference that no bre'akdown occurred and that the quality a=
- ' Hood's affidavit also suffers a similar deficiency.
He states that "had the Commission known at the time the original construction permits...were issued that [ quality assurance] activities...would not be implemented...in ac-cordance [with the approved plan]'that knowledge would have warranted -[the refusal of the permits] . Id. at 2-3. Hood offers no reasons-to~ support this statement. His conclusions
.must also be disregarded. Benton-Volvo-Metrairie, Inc. v.
Volvo Southwest, Inc., 479 F.2d 135 (5th Cir. 1973).
O
'V
() assurance deficiencies were not significant enough to pre-clude continued construction while they were being cor-rected.
Shewmaker, in his notes recording an internal NRC meeting, quotes Keppler's definition of a quality assurance
" breakdown:"
"[When] a major item [is] not caught in the QA system; one that comes up by an occurrence, NRC finding, allegation...." (Consumers Power Res-ponse, Attachment 4, Shewmaker Deposition, Exhibit 13).
Using Keppler's definition, since tha settlement problems to which the quality assurance deficiencies relate were dis-covered by the quality assurance program itself, there was no quality assurance " breakdown".
Further, none of the NRC's own documents, gener- ,
ated prior to December 6, 1979, allege that a quality assurance breakdown occurred or that the quality assurance deficiencies uncovered at Midland were significant. On the contrary, while acknowledging that there were some quality assurance problems, these documents show that it was the i
consensus at the NRC that no breakdown occurred. As Keppler wrote in December, 1978
" [T] hese [QA] deficiencies [ occurring since 1973]
uere isolated rather than generic in nature, were resolved in a responsible manner and did not represent a serious breakdown in quality assur-l ance. (Consumers Power Response, Attachment 1).*
- By law, the NRC is only concerned about a " break-down" which is "significant" or serious. See, 10 CFR 550.55 (e) (1) (i) .
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() Tbo opinion that no overall breakdown occurred was expressed by Shewmaker_(Consumers Power Response, Attachment 2, Shewmaker-Deposition, Exhibit 21) and in the Region III assessment of Consumers Power's quality assurance perfor-mance in October, 1979. (Staff Motion, Keppler Affidavit, Attachment 2). Gallagher hitself asserts that.the purpose of h's initial Midland investigations was to discover if a quality assurance breakdown occurred. (Staff Motion, Gallagher Affidavit at 8). Yet, any conclusion that such a breakdown occurred is conspicuously absent from any of his investi-gation reports. (See generally Staff Motion, Gallagher Affidavit, Attachments 2, 4 and 7).
In light of these obviously inconsistent conclu-sions and disparities in perception within the NRC itself, ,
material fact questions remain unanswered and a hearing on the issues of the significance of the quality assurance deficiencies and the concept of a " breakdown" is necessary.
(b) The Staff offers no support for a finding that a quality assurance break-down " caused" inadequate soils compaction.
Similarly, the Staff's assertion concerning the
" causation" of the compaction prot ems must be rejected. It is premised on an unsupported conclusion (that a " breakdown" occurred).and in any event is not the sort of finding ap-propriate to summary disposition.
Gallagher again is the only affiant who asserts that a quality assurance " breakdown" " caused" inadequate
( 1
compaction of the soils at Midland. IIis use of the term
(])
" breakdown",.as noted above, is not probative.
Further, the type of " causation" referred to is some sort of legal causation and thus not susceptible to de-termination without a hearing. Even Gallagher's affidavit does not suggest that some tangible aspect of quality as-surance -- a program which inspects and monitors conformance to specification and regulation requirements -- physically operated on the supporting soils of the diesel generator building to produce the settlement.
Rather Gallagher's affidavit suggests some conse-quential chain of happenstance with quality assurance acting as-c. link. Gallagher deduces that quality assurance deficien-cies caused the settlement because, i.e: (1) the quality -
assurance program did not properly check specification mistakes and construction mistakes of improper soils place-ment; (2) quality assurance deficiencies contribued to the conditions which permitted a Q-listed structure to be built on an improper' soils foundation; and (3) ultimately a bui'id-i l
ing settlement in excess of what was anticipated occurred.
! In short, the Staff position is that problems with quality assurance permitted inadequate compaction of soils.
l
. Whether they "causeJ" them is a question of " proximate L
i causation":
"[T]he limitation which the courts have placed upon the actor's responsibility for the conse-quences of his conduct. In a philisophical O
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i
~ . _ - . -
sense, the consequences of an act.go forward to
("~} eternity, and the causes of an event go back to the discovery of America and beyond....But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrong-ful acts...."
Prosser, The Law of Torts, (4th ed. 1971) at 236. Questions such as " causation" are inappropriately suited for summary disposition. Cf. Arney v. United States, 479 F.2d 653, 660
-(9th Cir. 1973).
Since " causation" is an assumption itself, resting upon the unsupported conclusion that a " breakdown" occurred, in this case judgment as to causation must be reserved for a full hearing.
(c) The Staff has not sustained.its. burden 4
in proving that inadequate soils com-paction is material to the quality assurance portion of the December 6, .
1979 Order.
Finally, in its list of Material Facts,.the Staff asserts in item "C" that " inadequate compaction at the Midland site caused the soil settlement problems...." It
- supports this'by the allegations in Joseph Kane's affidivil.
However, it fails to include any data, besides Gallagher's conclusory statements discussed supra, which demonstrate how the item is relevant to1the quality assurance portion of the December 6, 1979 Order.
The item's only' relationship to the issue of sum-mary disposition as the Staff has framed it, is its con-nection to Gallagher's conclusion that a quality assurance p/
_44_
(' -)
breakdown " caused" the poor compaction. As noted in the previous section, the breakdown assertion is both contra-dicted by other evidence in :lua case and is so conclusory as to lack any probative value. The causation assumption Gallagher makes is similarly defective. Thus, the inval-idity of Gallagher's conclusion makes tenuous the connection of the alleged " actual" cause of the soils settlement -- the poor compaction'-- to the primary issue of the summary disposition motion -- quality assurance.
In San Onofre, supra, and Seabrook, supra, Licensing Boards found that the remedy to a deficiency, not the de-ficiency itself, is the material consideration in. deter-mining whether a construction permit should be issue or re-fused. As the Staff presents item "C" in its list of Ma-terial Facts, it has little connection to the problems alleged in Midland's quality assurance program and no re-lationship to the remedies Consumers Power has instituted to solve these problems. As such, given the ambiguities, cm.tradictions, and omissions of the Staff's evidence, the
, fact that poor compaction caused the settlement is imma-terial to whether a construction permit could be denied as of December 6, 1979.
IV. CONCLUSION
.The Licensing Board must deny the Staff's requent 5/ .
,,)_
A s, . for summary disposition on the issue of quality assurance.
First, 10 CFR S2.749(d) precludes this Board from determining by summary proceeding the ultimate issue of whether to grant or refuse to grant a conscruction permit.
Even the Staff agrees that is the ultimate question in this case. Thus, grant of the Staff's Motion would be improper here.
Second, even if the Board is empowered to deny a construction permit by summary disposition, in light.of the inaccuracies and omissions in the affidavits and documents with which the Staff supports its Motion, numerous genuine issues of material fact exist which can only be resolved through an evidentiary hearing. In such circumstances, summary disposition is inappropriate.
Respectfully submitted, By % .vem . . A 7)hf,
//JoAnne G. fBloom Attorney for' Consumers Power Company ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312)_ 558-7500
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