ML20099G631
| ML20099G631 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/20/1984 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | |
| References | |
| CON-#484-292 ALAB-788, CLI-84-9, OL, NUDOCS 8411270364 | |
| Download: ML20099G631 (12) | |
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4 11/20/84 UNIE SMES OF MERICA $ lgy pg gg MO NUCLEAR REGUIA'IORY CObt4ISSICN Before the Ca mission 7' Y ".I.~. {
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In the Matter of
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ICNG ISLAND LIGRI'IN:i CCNPANY
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Docket No. 50-322-OL
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- (Shoreham Nuclear Power Station,
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Unit 1)
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SUFMLK COUNTY PETITION FOR REVIEW OF AIAB-788 On October 31, 1984, the Appeal Board issued (and served by U.S. mail)
AIAB-788. Pursuant to 10 C.F.R. 6 2.786(b), Suffolk County petitions for Ca mission review of ALAB-788.
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'Ihe Cmmission should review all the ina'jor health and safety issues addressed,in ALAB-788 and also should reconsider CLI-84-9, l'9' NRC 1323, per-taining to the need for a supplemental EIS covering low power operation
- followed by abandonment. Given the 10-page limit of Section 2.786, the County highlights only the following issues.
I.
LIICO Lacks a Quality Assurance Program for Nonsafety-related Equipment (ALAB-788, at 16-20)
'Ihe County argued that systems, structures and cmponents ("SS&Cs")
which are inportant to safety and thus covered by 10 C.F.R. Part 50, Appendix 6
A, GDC 1, Inust be subject to a systematic quality assurance ("QA") program.lf LIICO has a QA program for safety-related SS&Cs, but for SS&Cs which are inportant to safety but not safety-related, LIICO has no systematic QA program. LIIf0 merely has an ad hoc system of OA activities, the precise lf-Suffolk County Brief*in Support of Appeal of Licensing Board Partial Initial Decision ("SC Brief"), Decernber 23, 1983, at 4-11.
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scope or details of which were never established on the record. 'Ihe Appeal Board found this ad hoc pursuit of m to be acceptable and held that riot even written procedures are required for QA for nonsafety-related SSacs covered by GDC 1.
See ALAB-788, at 19-20.
GDC l' specifies that "a quality assurance program shall be established and inpleented" for all SSaCs inportant to safety.
(m phasis supplied).
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Ccumission nust decide what constitutes a g program. We submit that a QA program nust constitute a series of planned and systematic actions by which a specified regime of QA activities and controls will be applied. For activi-ties pertaining to the nonsafety-related SSaCs to constitute a " program,"
there unst be a clearly defined set of activities which in fact will be inplemented. See SC Brief at 4-11. LIICO does not have such a program.2f Accordingly, this Conmission should take review to (i) define what GDC 1 means in requiring a QA program (an issue that is significant. for all plants);
and (ii) to decide whether the QA activities hwnted on the Shoreham record constitute a OA program in empliance with GDC 1 for nonsafety-related SSaCs.
II.
'Ihe LIICO QA Program Does Not Ccuply with 10 C.F.R. Part 50, Appendix B, Criterion 18 (ALAB-788, at 61-66)
'Ihe Appeal Board misinterpreted Criterion 18 of Appendix B to Part 50.
See SC Brief at 43-48. LIIro does not audit 100 percent of Shoreham's OA records and activities. Rather, LIICO audits only a small neber of items, selecting those items to be audited by non-rand e, non-statistical judgment
~sanpling techniques. 'Ihereafter, based on the specific audit findings from 2/
Despite repeated ' requests that LIICO cbement its ' alleged nonsafety-related QA program on the record, the construction site inspection manual, which the Licensing Board had alleged to contain the nonsafety-related QA program (see ASLB Decision at 589), was never even placed into the record, a situation which is clearly contrary to Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-580, 11 NRC 227 (1980).
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..N that judpent sanple, LIICO atteupts to reach concitsions regarding the ade-quacy of the total QA program.
Criterien 18 requires that the audit' program provide a' basis for concluding that all~' aspects of the LIICO m program have been effectively
- inplemented. Since all. aspects of that program are not audited, Criterion 18
'can be satistied only if the audits provide a reliable basis for reaching
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inferences about the adequacy of the' entire @ progran.
If an auditor selects items using only judgment instead of using statis-tical sangling techniques, _ there can be no confidence in the accuracy of any _
inferences drawn regarding the entire population. Suffolk Count'y sutaits that :
for an accurate extrapolation to be possible, the audit program nest include Ui statistical methodology regarding sanple selection. Since LIICO does not use such methodology, LIIco has,not established,an audit program wisich conplies
.with criterion 18.3f This issue is significant not only in the Shoreham proceeding but for other prx @ s as well, particularly given the wide-spread QA/QC breakdowns which have been reported at other plants.
III. The Appeal Board's Decision on Specific Quality Assurance Matters was Em.nEGis (ALAB-788, at 66-83)
The Appeal Board addressed the details of the County's evidence and argtunents (SC Brief at 48-78) relating to whether LIILO's safety-related @
program has been implemented adequately. The Board covered various QA issues, including scue pertaining to hWging, control of calculations, and elec-3/
Suffolk County does not urge that jud pental, techniques may not also be iitilized. Rather, the focus of this issue is narrow, although its ramifi-cations are broad: whether the ccanission is going to require its licensees to have audit programs on the basis of which reliable inferences can be reached about the WM of QA which has been applied to areas of the plant or reswd. which are not specifically audited.
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trical separation, as well as what constitutes a QA deficiency and the ' level
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_of assurance that Boards nust demand in assessing QA cmpliance.
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- Suffolk County took the position that there was no such' thing.as an -
umaterial or uninportant QA deficiency.
Id. at 49.- - A QA pisgram nust establish the necessary discipline among plant workers to ensure that all-
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e aspects of the program are rigorously inplemented. Successful inplementation depends on active management involvement.
'Ihere were repeated instances of deficient QA inplementation at Shore-ham. men these instances were brought to management's attention, little in -
often was done to correct the deficiencies.4f.
'Ihe Appeal Board seemed to view most of these QA deficiencies as rela-j tively minor because the County could not point to actual safety problems of phticular QA deficiencies._ 'Ihis represents the wrong standard and thus T
Cannission review is essential. 'Ibe issue in the QA context.'is not whether e l
p' articular QA deficiency constitutes a safety, problem. It is often difficult to tell whether there is safaty significance to a particular.QA deficiency.-
s However, by allowing lax QA inplementation, MICO permitted creation of a.
himate in which there is increased potential for QA defici'encies to consti-tute safety problems.
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'Ihe Camission should rule that all QA deficiencies aEe significant and m
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that the NRC will be satisfied with a licensee's QA/QC inpleentation only if
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For exanple, there'were repeated instances where the control'of cal,
-culationsi did not emply with LIICO's own QA manual. S.imilarlyrover a-'
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x several year period, the cleanliness and housekeeping requirenants of>LIILO's QA program (and Criterion 13) were not met.
Indeed, LILCO'-~vehtmade specific e
prcxnises to the Staff that' effective remedial measures would be taken but time after time it was discovered that effective corrective action had not been 7 ' -, ss ;s. -
i taken. -
Id. at 62-67.
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,' I there is strong evidence that a rigid and unyielding protocol of QA effective-ness has been adopted by the licensee.
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here is one additional procedural error which should be brought to the Ccxmdssion's attention.
(ALAB-788, at 92-96; SC Brief at 79-81).
In connec-tion with the housekeeping deficiencies, the Staff in January 1983 uncovered 1
additional housekeeping deficiencies and issued a Confirmatory Action Ietter to LIICO, a form of heightened enforcement action. Se Licensing Board thereafter convened a further hearing to examine the ramifications of this action. Suffolk County requested an opportunity to present evidence. LIICO and the NRC Staff were permitted to present testimony but the County was barred, the Board apparently believing that the County could argue its posi-tion in its findings and that the County's evidence would be cumulative of previous positions taken by,the County. We Appeal Board seemed to agree, and
. faulted the County for having' failed to present an offer of proof.
Ee'Ccmnission should not permit such a flageral denial of due process.
It is a per se violation of procedural fairness to allow parties on one side of an issue to present evidence but to deny other parties the same right. Se Board's ruling in this regard and the Appeal Board's affirmance thereof, is an openinvitationforproceduralerrorinfutureproceedings.5f h e NRC has an obligation to ensure that its licensing and appeal boards ccxtp'y with the regulations and conduct proceedings in accordance with the
. Atcmic Energy Act and fundamental fairness. Eis is an instance where the 5/
2ere can be no justification for this extraordinary action. All
-testimony was to be prefiled. If the County testimony was cumulative or repetitive, the Board had authority under 10 C.F.R. 5 2.743(c) to bar that testinony. However, the Licensing Board did not even permit the County to get to that point, instead ruling as a matter of law that we would not be per-mitted to submit evidence.-
boards have acted squarely contrary to fundamental fairness.
It is utperative that the Ccanission take review of this matter so that~ the serious dud process violation can be addressed.
IV.
We Decisions Concerning Systemu Inr.eraction are Clearly Erroneous (ALAB-788, at 36-59)
Contention 7B concerned, inter alia, the adequacy of LIIf0's methodology for identifying adverse systems interactions. Se County documented a serious systems interaction concerning the B R water level sensing system. SC Brief at 19-22. 'Ihis interaction, the so-called Michelson concern, involves the reactor protection. and feedwater control systems which share instrument sensing lines that monitor reactor vessel water level.
m e Appeal Board appeared to consider the Michelson concern with no alarm because GE and apparently LIILO had identified this problem and had determined that the intera[t on would likely remain within design limits.
Rus, nothing was done to fix it; instead, increased reliance was placed on operators to respond to the problem when it occurred. Eis is an incorrect view cf the way the MtC's regulations are to be construed and also is indica-tive of a failure ~ of methodology.
The Cortmission should address the fact that for years the methodology employed by LIICO and GE permitted an adverse systems interaction to exist despite the fact that there were methods for addressing this concern. 'Ihe lessons of the 'IMI accident are clear to be careful not to place undue demands
'n operators and to decrease challenges to safety systems, which challenges o
may increase the opportunity for operator error. However,. the LIIf0/GE methodolcigy did not address-these concerns and rather permitted an adverse j
r systems interaction to continue. In this context, the Appeal Board should have ruled that a deficiency in the LIILO methodology was established. Se
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Comnission should review this aspect-of the decision so that it can provide.
necessary guidance regarding the Wwy of 'a methodology which did not address or attengt to correct adverse systems interactions.
.A further issue relating to systems interaction _ concerns the lack of progress in' addressing unresolved generic safety issue A-17.
SC Brief at 29--
- 40. Bere has been almost no progress in the resolution of A-17, either generically or with respect to Shoreham..Indeed, the lack of progress led the chief Staff reviewer of the A-17 matter, Mr. Conran, to reverse his testimmy and to testify that W=te progress on A-17 to support licensing had not been acl.ieved.
h e apparent position of the Appeal Board was that since A-17 was allegedly only " confirmatory" in nature, the lack of progress, while perhaps not to be applauded, was not,of safety concern. However, under the North Anna standard, A-17 cannot be resolved on so sinple a basis.
It is undisputed that A-17 bas had a high priority since it initially was recognized as an issue back in the 1970's. If the Ibrth Anna standard is to have significance, this Cmmission nust rule that there nust be a basis for finding that adequate progress has been made. It is not enough to say that confirmatory studies that have not made any progress have not indicated any problems. S e reason that no problems have been identified is perhaps that no progress has been made at all.
V.
S e Appeal Board Erred in Vacating the j
License Condition (ALAB-788 at 13-14) i me Licensing Board found that LIICO had misinterpreted the term "inportant to safety," equating it with the narrower class of safety-related r
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SSacs. Because of this error, the Licensing Board conditioned the issuance of any license on LIIro's adoption of the proper definition. LIICO appealed the
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f-license condition and the Appeal Board vacated the same. The Appeal Bchrd did not disagree that LIICO had misinterpreted the regulations bdt found that.
L since T. Tim allegedly had treated inportant to safety SSacs properly, the 2
license condition was not necessary. The County had urged that the license i
condition and nuch more was necessary to correct LIICO's failure to couply with the NRC regulations. See SC Brief at 11-18.
The Conmission nust review this holding. This is an instance of a
' licensee having fundamentally misinterpreted key NRC regulatory requirements 3~
.and the Appeal Board holding that all is just fine despite this fact. Indeed, no effective steps were even put in place to ensure that LIICO ccmplies in the future. ThisLis a serious abdication of regulatory responsibility.
I VI.
The Licensing Anard's Use of Evidentiary Depositions was Euwscus (ALAB-788 at 137-43)
A number of errors pe.% to onsif.e emergency planning were briefed to the Appeal Board. SC Brief at 87-98. The Appeal Board decided each of them in an erroneous manner. The Ccmmission should review each. We highlight l'
one in particular.
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The Shoreham onsite emergency planning proceeding started in April 1982 j
and involved extensive discovery, especially via depositions. By.Novenber
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1982, the parties had prefiled direct testimony and were preparina for a t
hearing. The Licensing Board then decided to experiment with the due process i
j rights of the Intervenors. The Board ordered that so-called " evidentiary depositions" be conducted instead of the normal hearing which has always been
' held in NRC proceedings. Although the Board stated that it would convene a i
, special hearing after the evidentiary depositions to allow focused inquiries P
concerning the testimony and demeanor of witnesses, it made clear that a large
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percentage of the " hearing" would be conducted out of the presence of the f
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-Licensing Board.- Rus, it was inevitable that the Board would be barred frcm a full exposition of the facts. Se Appeal Board approved this experi-mentation.
Section 189 of the Atcmic Energy Act provides parties with an cpportuni-
-ty.for a hearing in any proceeding for a license to operate a nuclear plant.
his hearing requirement has consistently been construed by the NRC to mean an actual hearing before the NRC's adninistrative judges. Depositions have been used in NRC practice as a proper pretrial device, but have never been used as a substitute in whole or in part for a public adjudicatory hearing. mus, the order to proceed by evidentiary depositions was totally at odds with the norm and practice of NRC proceedings.
A licensing board has discretion to control the course of a proceeding.
However, that discretion d:ss not extend to, making a serious adjudicatory proceeding into a forum for adninistrative experimentation.,Jhe parties in the Shoreham proceeding are entitled to the full attention of the Licensing Board in the trial proceeding.
S e Licensing Board's December 22, 1982 order dismissing onsite emergency planning contentions was prenised solely on the fact that Inter-venors had " defaulted" by refusing to subnit to the Board's use of evidentiary depositions. Since the order for evidentiary depositions was unlawful, the f
subsequent default ruling was likewise unlawful. Accordingly, this Ccmnission
.should reverse the dismissal of Phase I emergency planning contentions and order a hearing on those issues.
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Respectfully subnitted, Martin Bradley Ashare Suffolk County Department of Law i
Veterans Memorial Highway Hauppauge, New York 11788 S
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lierbert H. Brown "
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Lawrence Coe Lanpher.
KIRKPA'IRICK & IOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County November 20, 1984
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION D 26 ; S 8.'4()
Before the' Commission 50ckg[hfh"$
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' B.
In the Matter of
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LONG ISLAND LIGHTING COMPANY.
)
Docket No. 50-322-OL
)
(Shoreham Nuclear Power Station,
)
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Unit.1)
)
).
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY PETITION FOR REVIEW OF'ALAB-788, dated November 20, 1984, have been served on 1
the following this 20th day of November 1984 by U.S. mail, fir.et class.
Judge Marshall E. Miller, Chairman Edward M.
Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting Company U.S. Nuclear Regulatory Commission 250 Old Country' Road s
j, Washington, D.C.
20555 Mineola, New York 11501 Judge Glenn O. Bright Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U'.S.
Nuclear Regulatory Commission H. Lee Dennison Building Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B.
Johnson Oak Ridge National Laboratory Fabian Palomino, Esq.
P.O.
Box X, Building 3500 Special Counsel to the l
Oak Ridge, Tennessee 37830 Governor Eyecutive Chamber, Room 229 Eleanor L. Frucci,'Esq.
State Capitol
. Atomic Safety and Licensing Board Albany, New York 12224 U.S. Nuclear Regulatory Commission Washingtoh, D.C.
20555 W.
Tayldr Reveley, III, Esq.
Anthony F. Earley, Jr., Esg.
Edwin J. Reis, Esq.
Robert M. Rolfe, Esq.
l Bernard M.
Bordenick, Esq..
Hunton & Williams i.
r Office of Exec. Legal' Director 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C.
20555
e
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Mr. Martin Suubert James Dougherty, Esq.
c/o Cong.. William Carney 3045 Porter Street, N.W.
1113 Longworth House Office Washington, D.C.
20008 Building r
Washington, D.C.
20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley Ashare, Esq.
Shoreham Nuclear Power Sta.
Suffolk County-Attorney P.O.
Box 618 H.
Lee Dennison Building North Country, Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Esq.
Docketing and Service Branch New York State Energy Office Office of the Secretary Agency Building 2 U.S.. Nuclear Regulatory Commission Empire State Plaza.
Washington, D.C.
20555 Albany, New York 12223 Nunzio J.
Palladino, Chairman Comm. Frederick M.
Bernthal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.
Room lll4 Room 1156 1717 h Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Lando W.
Zech, Jr.
Comm. Thomas M. Roberts U.S. Nuclear Regulatory' Commission V.S.
Nuclear Regulatory Comm.
Room 1113 Room 1103 1717 H Street, N.W.
1717 H Street',.N.W.
Washington, D.C.
20555 Washington, D'.C.
20555 Commissioner James K. Asselstine Stephen B.
Latham, Esq.
U.S. Nuclear Regulatory Commission John F. Shea, Esq.
-Room 1136 Twomey, Latham and Shea 1717 H Street, N.W.
33 West Second Street Washington, D.C.
20555 Riverhead, New York 11901 Herzal Plaine, Esq.
U.S. Nuclear Regulatory Commission 1-Oth Floor 1717 H Street, N.W.
Washington, D.C.
20555
{ Op, g oaf n, / -
" Lawrence Coe Lanpher/'
KIRKPATRICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 1
DATE:
November 20, 1984 i
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