ML20076F012
| ML20076F012 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/26/1983 |
| From: | Curran D, Jordan W HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8306010382 | |
| Download: ML20076F012 (10) | |
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UMEED May 26, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos.
50-443 NEW HAMPSHIRE, et al.
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50-444
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(Seabrook Station, Units 1
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and 2)
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NECNP PETITION TO THE APPEAL BOARD FOR DIRECTED CERTIFICATION Introduction The New England Coalition on Nuclear Pollution (NECNP) petitions the Appeal Board for dirycted certification of a Licensing Board summary disposition ruling on NECNP Contention II.B.4 in the Seabrook nuclear power plant licensing case.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
LBP__ (May 11, 1983).
In dismissing NECNP's contention II.B.4; regarding Quality Assurance for Replacement Parts, the Board found that Applicants' " commi tmen t" to comply with the regulations resolved the allegations of noncompliance by NECNP, even where the noncompliance was conceded by Applicants.
The Board's ruling on Contention II.B.4. is not only flagrantly illegal, but it sets a precedent in this case that 8306010382 830526 PDR ADOCK 05000443 O
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4 could virtually eliminate the participation of NECNP and all other intervenors.
Under the Board's May 11 decision, all contentions raised by intervenors are subject to dismissal on the basis of an unsubstantiated promise by Applicants that the alleged defects will be cured.
Moreover, the Board's willingness to accept a " commitment" to comply with NRC regulations as the legal equivalent of compliance creates a threat to the public health and safety.
The Licensing Board cannot approve operation of Seabrook unless and until it finds a reasonable acsurance that the plant will be operated in compliance with NRC regulations.
That compliance must be demonstrated, not merely promised.
The Appeal Board must not permit the Licensing Board to conductanentirelicensingproceeding,requiringreviewof numerous serious safety issues, under the grossly erroneous misconception that a commitment to resolve these issues can be used as a basis for issuance of an operating license.
For these reasons, we ask the Appeal Board to accept directed certification of the Licensing Board's denial of Contention II.B.4.
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Background
l NECNP Contention II.B.4. asserts that the Seabrook Quality l
l Assurance program for operations as described in the FSAR does not demonstrate how the Applicants will assure that replacement l
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J parts for Seabrook are equivalent to original parts or that they are installed in accordance-with proper procedures.
It also asserts that the QA program does not demonstrate how repaired or reworked items will be adequately inspected and tested. 1[
j Contention II.B.4 is based on the lack of information in the PSAR demonstrating how QA for replacement parts will be carried out.
Applicants, filed a motion for summary disposition asserting that the issues raised by NECNP are I
addressed adequately in sections 17.2.4 and 17.2.5 of the FSAR.
The motion was supported by the NRC Staff.
4 In its opposition to the motions for summary disposition, NECNP asserted that the sections of the FSAR cited by Applicants in support of their motion fell woefully short of
{
meeting the requirement of 10 C.F.R. 50.34(b)(6)(ii) that:
The information on the controls to be used for a nuclear power plant
. shall include a discussion of how the applicable requirements of Appendix B. will be satisfied.
(Emphasis added.)
NECNP made the following specific criticisms of the QA program as described in the FSAR:
1/ The text of the contention is as follows:
l The Quality Assurance Program for operations as described
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in the FSAR does not demonstrate how the Applicant will assure that replacement materials and replacement parts incorporated into structures, systems, or components i
l important to safety will be equivalent to the original equipment installed in accordance with proper procedures and requirements, and otherwise adequate to protect the public health and safety.
Similarly, the Quality Assurance Program does not assure or demonstrate how repaired or l
reworked structures, systems, or components will be j
adequately inspected and tested during and after the repair or rework and documented in "as built" drawings.
_ ~
. 1.
The FSAR discussion of QA for replacement parts appears a t 17. 2. 4.
That section, a total of only three pages of text, is purported to demonstrate how QA requirements will be met for replacement parts.
It does no such thing.
To the contrary, it includes only a very general discussion describing generally the framework of what the Applicants expect to do in this area.
2.
The discussion indicated.
that all purchase requests will include "as appropriate," " Quality Assurance Requirements."
But there is no indication what those requirements will be or how Applicants will assure that they are met by the vendor.
3.
There follows a mention of the " quality review", but there is no indication of what that review might be.
Indeed, for "off-the-shelf" items, Applicants appear to indicate that they have not decided how they will perform quality control.
Rather, they will develop special requirements for each item.
Not only is there not even the slightest outline of what these requirements might be, there is no indication of how they will be developed.
Who will be responsible for developing them?
Who will review them when they are developed?
Who has initial approval responsibility?
Who has ultimate approval authority?
The FSAR provides none of this information.
4.
With respect to repair and rework, Applicants rely on less than one page of text S 17.2.15.
S.
There is no indication of how or by whom the inspections will be performed.
Beyond the cryptic mention of nonconformance reports, there is no indication of how the QA will be documented.
Perhaps more important, there is no indication of how or with what frequency the crucial trend analysis will be performed to prevent repetition of significant quality problems.
l 6.
Applicants' affidavit established that they have not yet determined, or at least have not yet chosen to reveal, how the QA program will be implemented.
NECNP Opposition to Applicants' Motion for Summary Disposition at 24-27, March 24, 1983.
(The f ull text of NECNP 's opposition on Contention II.B.4 is attached as an exhibit to this pleading.)
Because there was no disagreement as to the facts asserted, the Licensing Board concluded that the issue to be decided in
. considering Applicants' motion was a " matter of law whether Applicants have sufficiently outlined in the FSAR how they will meet the Quality Assurance requirements."
Board order at 29.
In reviewing the parties' submissions, the Board responded to NECNP's specific allegations regarding the FSAR with a cursory and generalized description of what the applicable sections of the FSAR contained.
Only one attempt was made to address NECNP's specific concerns, and in that case [ issue 6 above] the Board agreed that Applicants had not yet developed procedures for implementing the quality assurance program.
Board order at 28.
The Board did, however, make the following findings regarding Applicants' commitment or obligation to a QA program:
1.
In S 17.2.2.4 Applicants have committed to conform to the recommendations of Regulatory Guide 1.33, February 1978, " Quality Assurance Program Requirement (Operation)."
2.
Applicants have committed to satisfy S 5.2.11,
" Procurement Materials Control," which requires that purchased materials and components associated with safety-related structures or systems be purchased to specifications equivalent to those specified for the original equipment.
3.
Applicants have committed to a program that requires that spare and replacement parts must be purchased to meet the technical and quality level equal to that of equipment originally purchased, that inspections be made to assure proper installation of replacement parts and materials, that repaired or reworked items must be inspected or tested I
to assure their acceptability, and that documentation of j
design changes will be acceptable to personnel.
I 4.
The NRC Staf f indicated that at a later date the l
Applicants must submit a QA manual which will set forth the j
actual procedures that are being developed.
That manual l
will be inspected by Region I personnel prior to the Applicants' receipt of an operating license.
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l Licensing Board order at 28-29 (emphasis added).
i After describing this assemblage of plans and commitments, the Board cryptically concluded that "at this point in time,"
there is "no genuine issue as to a material fact in dispute and that as a matter of law Applicants have sufficiently outlined i
in the FSAR how they will meet the Quality Assurance requirements."
Board order at 30.
The Board's logic is difficult to fathom.
When even the Board concedes that a great deal of critical information is missing from Applicants' Quality Assurance Program, the only conceivable basis for the Board's decision is the Applicants' commitment to meet the regulatory requirements for quality assurance.
Some insight into the Board's thinking is provided by the l
Board's ruling on a the State of N w Hampshire is Contention 9.
There the Board found that although Applicants had not yet i
complied with a' particular requirement of NUREG-0737, they had
" committed" to compliance.
In granting the summary disposition motion, the Board stated:
The Board finds that Applicants have committed under oath to comply with Item II.B.3 of NUREG-0737.
No evidence has been offered to cause the Board to question the credibility of this commitment.
To the contrary, an applicant's commitment under oath to comply is treated as evidence that it will comply.
Board order at 14.
(Emphasis added.)
Apparently, the Licensing Board considers that when an applicant has made a purported " commitment" to compliance with a regulatory requirement, the only litigable issue is whether that
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. commitment is a " credible" one.
The Board thus reduces the entire licensing process to a determination as to whether the applicant can be believed when it promises to operate a plant safely.
Argument A.
The Appeal Board should accept directed certification of this issue.
Under established NRC practice, the Appeal Board exercises its authority to review interlocutory Licensing Board decisions sparingly and undertakes review only where the ruling below either (1) threaten (s] the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affect (s) the basic structure of the proceeding in ;a pervasive or unusual manner.
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977).
The Licensing Board's dismissal of NECNP Contention II.B.4 meets the second prong of that test.
In its order, the Board has clearly articulated its belief that a commitment to comply with regulations is tantamount to compliance itself.
The Board's erroneous conception may taint the entire licensing proceeding and foreclose the consideration of serious safety 1
issues raised by NECNP and other intervenors.
Each contention or argument raised by NECNP in the proceeding could conceivably i
be successfully met by Applicants' assertion that they were
. " committed" to correcting the alleged deficiency.
The Board has now rejected three serious safety contentions raised by NECNP and the State of New Hampshire, with no prospect of an on-the-record resolution of those issues.
Rather than pursuing the legitimate concerns raised by intervenors, the Board has developed a rationale for avoiding them.
It is~the Appeal Board's reponsibility to intervene in this case, where the Licensing Board's action threaten (s] to impede rather than assist the search for truth."
Offshore Power Systems (Floating Nuclear Power Plants) ALAB-4 89, 8 NRC 19 4, 2 0 6 (1978).
(Appeal Board reversed Licensing Board decision to set deadline for Staff's submission of environmental statement.)
See also Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-379, 5 NRC 565 (Appeal Board found Licensing Board abused its discretion in sequestering staff witness).
The issue of what constitutes compliance with Commission regulations and therefore can form the basis for the issuance j
l of an operating li' cense is central to this proceeding.
It will l
l affect not only the conduct of the licensing proceeding, but the quality of the Board's eventual determination as to whether there is a reasonable assurance that the Seabrook plant will be operated safely and in compliance with NRC regulations.
The l
Board has before it a number of serious safety issues that could affect the safe operation of the plant.
Approval of operation based on a pervasive misconception of the i
. Commission's licensing standard could result in the licensing and operat' ion of an unsafe plant.
The critical implications of the Board's ruling for the validity of the overall licensing decision warrants exceptional treatment by the Appeal Board.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Un its 1 and 2 ),- ALAB-519, 9 NRC 42 (1979) (Appeal Board reverses licensing board order denying subpoenas for ACRS witnesses on seismic issues, noting the importance of those issues.)
3.
The Licensing Board's ruling violates the Atomic Energy Act and NRC Regulations.
There is absolutely no precedent for the Licensing Board's decision that a commitment to comply with NRC regulations effectively constitutes complianceiwith the regulations.
The Atomic En'ergy Act and NRC regulations require a demonstration of compliance itself.
Section 185 of the Atomic Energy Act.,
42 U.S.C. S2235, requires a finding that a nuclear facility will operate in ' conformity with, inter alia, the Commission's regulations.
The required findings are also set out in 10 C.F. E. S 50.57(a):
i (2).
The f acility will operate in conformity with.
the provisions of the Act, and rules and regulations of the Commission; and (3).- There is reasonable assurance (i) that the activities authorized by.the operating license can be conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the regulations in this chapter.
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l
s
. The Commission considers compliance with the regulations to be the " sine qua non" of adequate protection to the public health and safety.
Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 A.E.C. 1003, 1007 (1973).
It is belaboring the obvious to point ou that the NRC has an enormous technical staff devoted to the review of license applicants' compliance with the regulations.
To suggest that a license applicant could qualify for an operating license by simply promising to obey the NRC's regulations is absurd.
Conclusion The Licensing Board has now granted summary disposition on three contentions submitted by NECNP and the State of New Hampshire on the basis of the Applicants' " commi tmen t" to satisfy the re.3ulations.
Not only has the Board acted arbitrarily, by excluding those contentions from the licensing proceeding, but its reasoning threatens to pervade and subvert the entire Seabrook operating license proceeding.
For these reasons, we urge the Appeal Board t<
ccept directed certification of the Board's d1& sts.v of NECNP Contention II.B.4. and reverse the Board's ruling.
Respectfully submitted, Diane Curran William S. Jo[ dan,III HARMON & WEISS 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006 (202) 833-9070 Dated: May 26, 1983
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