ML20100J975
| ML20100J975 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/05/1984 |
| From: | Earley A HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#484-503 ALAB-788, OL, NUDOCS 8412100524 | |
| Download: ML20100J975 (12) | |
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UNITED STATES OF A!! ERICA-NUCLEAR REGULATORY C0!!>lISSIONn.
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00gETED Before the Commission u
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Docket No.50-32h,0{Ig{(SicRpy,y LONG ISLAND LIGHTING C011PANY
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.(Shoreham Nuclear Power Station,
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LILCO'S OPPOSITION TO l-SUFFOLK COUNTY PETITION FOR REVIEW l
On November 20, 1984, Suffolk County petitioned the Commission to review i
the Appeal Board's decision in this case, ALAB-788. Suffolk County Petition for Review of ALAB-788 (Petition).1/
LILCO opposes the County's requests and urges the Commission to deny the petition.
Commission review of an Appeal Board decision is a matter of discretion reserved for important questions of fact, law or policy.
10 CFR l
1/
The Petition also requested the Commission to reconsider a decision it rondered six months ago, CLI-84-9. 19 NRC 1323 (1984).
Petition at 1.
The Commission's decision, issued on June 3 in response to a certification by the Appeal Board ALAB-769, 19 NRC 995 ( boe), addressed the question whether l
"some form of envircumental evaluation under NEPA [was] required as a precandition to issuance of a license for low power operation," and answered it in the negative.
CLI-84-9, 19 NRC at 1326.
Indeed, the Commission noted that it had earlier rejected a related County argument that no low power li-conse be granted for Shoreham before final resolution of emergency planning issues.
Id. at 1327. The County's request for reconsideration of CLI-84-9 is l
grossly out of time. L'nder 6 2.771, petitions for reconsideration must be filed within 10 days of the date of the decision. The County offers no expla-j nation for its delay. The request for reconsideration also lacks substantive l
basis. The County offers no reason why the Commission should revisit an issue l-that it explicitly and carefully considered. The request makes no attempt to
. address, as required by the Rules of Practice at 6 2.771(b), the respects in which the final decision is claimed to be erroneous, the grounds for the peti-tion, and the relief sought.
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@ 2.786(b)(1), (4).
Petitions for review should not ordinarily be granted on matters of law or policy unless it appears the case involves an important matter that could significantly affect the public health and safety involves an important procedural issue, or otherwise raises important questions of public policy 10 CFR $ 2.786(b)(4)(i) (omphasf3 added).
Similarly high standards exist where matters of fact are involved:
A petition for review of n.1tters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board; 10 CFR 5 2.786(b)(4)(ii) t emphas is added). Thus, by in. plication, petitions for review are not to be granted where, as here, the Appeal Board has resolved factual issues consistent with the" Licensing Board's determination.3/ The County has also consistently failed to establish the importance of the issues presented by it, contrary to the requirements of 6 2.786(b).
A.
Quality Assurance for Non-Safety Related Equipment (Petition at 1-2)
The County provides inadequate basis for Commission review of the Appeal Board's conclusion that LILC0 applied adequate quality assurance measures to non-safety related equipment.
First, to the extent the County argues that, as a legal matter, GDC 1 requires a comprehensive "QA program" for equipment 2/
Not only is this result consistent with the caveat concerning a
" contrary" result, it is also consistent with the " clearly erronecas" stan-d1rd. Where two separite adjudicatory boards have reached consistent factual conclusions, it is dif fic. ult to conclude they are " clearly erroncoas."
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which is important to safety but not safety related, the matter has already been-resolved by'the Commission.
In CLI-84-9, the Commission concluded that whether any piece of equipment has a function "important to safety" is to be determined on the basis of a particularized showing of clearly identi-fied safety concerns for the specific equipment, and the requirements of General Design Criterion 1 (GDC
- 1) must be tailored to the identified safety conccrns.
CLI-84-9, 19 NRC at 1325. Thus, contrary to the County's claim, the regula-tions do not mandate a systematic QA program of the sort envisioned by the County for non-safety related equipment.
See ALAB-788 at 29.
Second, as a factual matter, the adequacy of LILCO's quality measures for non-safety relat-ed equipment is not appropriate for Commission review.
See 5 2.786(b)(4)(li).
Both the Licensing board and the Appeal board agreed:
LILCO applied quality assurance and quality standards commensurate with the functions of the equip-ment in question.3/ ALAB-788 at 20-32; LBP-83-57, 18 NRC 445, 546, 563-65 (1983).
Third, no significant safety issue exists.
The County, given more thcn ample opportunity, has failed to show on the record or in its petition that any specific equipment at Shoreham has been subject to inadequate quality assurance.
3/
Footnote 2 of the County's petition is blatantly misleading.
First, the County claims, without citation to the record, that " repeated requests" were made for LILCO tu place its construction site inspection manual on the record.
tlc only " requests" were the excuses of SC's own witnesses, who tried to de-fend their ignorance of non-safety related QA by claiming that they had never seen the document in question.
E.g., Tr. 16,004-05 (Hubbard).
Second, the County seems to suggest that the construction site inspection manual was the t,um total or non-safety related quality assurance for Shoreham. To the con-trary, it was only a part of the ef forts of LILCO and its contractors to on-sure adequate quality assurance ter non-safety related equipa.ent.
fa, LBP-83-57, Unpublished Findings of Fact at 599-o01 (J-375 to -384), 003-05 (J-389 to -395), 613-19 (J-421 to -4371.
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B.
Compliance With 10 CFR Part 50, Appendix B. Criterion 18 (Petition at 2-3)
The County's claim that LILCO has failed to comply with Criterion 18 be-cause it does not use statistical methodology in conducting QA audits is unsupported by the facts or law.
Both the Licensing and Appeal Boards cor-rectly found on the merits that LILCO's QA audit program provided reasonable assurance of no undue risk to the public health and safety.
See ALAB-78S at 65-6o; 18 NRC at 584-86.
Thus, this subject is not an appropriate subject for Commission review under 5 2.786(b)(4)(ii).
Similarly, both Boards agreed that Criterion 18 does not require the methodological rigidity sought by the Coun-ty.
ALAB-786 at e4-65; IS NRC at 584, 611, e19.
As the record reflects, (i) statistical methods have not been demonstrated to be feasible for use in Ap-pendix b audit programs. 15 NRC at olS-19, and (ii) the nuclear industry and the NRC Staff do not use such methods in audit programs.
Id. at oil.
The County seeks an unwarranted sharp departure from past NRC and industry interpretation and practice more akin to a petition for rulemaking than to a petition for review.
C.
Syecific QA Issues 1.
SC Erroneously Claims All QA Deficiencies Are Significant (Petition at 3-5)
Suffolk County seeks review of the Appeal Board's factual finding, agree-ing with the Licensing Board, that none of the quality assurance deficiencies discussed in the Shoreham record had any safety significance.
The County's claim is meritiess.
First, the assertion that "all QA deficiencles are significant" (Petition at 4i defles common sense Some
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-deficiencies are significant and some are not.
Both the Appeal and Licensing Boards held that,' in general, LILCO's were of the latter variety. ALAB-788 at 66-86; 18 NRC at 580-81, 586-97.
Second, SC's arguments are contrary to the express language of Appendix B.
Among others, Criterion XVI recognizes that deficiencies will occur and expressly distinguishes between those that are significant and those that are not.
Third, the Appeal Board's finding that LILCO had coinplied with the NRC's regulations despite the existence of deficiencies is consistent with NRC precedent. QA programs need not be per-fect; they only need to provide reasonable assurance of no undue risk.
See ALAB-788 at 67 (quoting Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983)); see also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plant, Units 1 and 2), ALAB-750, 18 NRC 1340, 1345 (1983).
Finally, the County has failed to allege that any specific QA deficiency has safety significance.
The Licensing Board repeatedly urged the County to put its best case forward, ALAB-788 at 87, but no valid safety concerns were ever identified in over 55 days of evidentiary hearings. The Petition is sim-ilarly devoid of specific safety allegations. These factors all warrant deni-a' of the Petition.
2.
SC's Procedural Claims Are Unpersuasive (Petition at 5-6)
The County alleges procedural error because its witnesses were not per-mitted to introduce testimony on an NRC inspection report.
Petition at 5-6.
In context, the claim is palpably absurd.4/ As the massive QA litigation drew s/
As noted above, fifty-five hearing days were devoted to SC's QA/QC con-tentions generating almost 10,000 pages of transcript.
County cross-examination of LILCO witnesses consumed over seven weeks.
o 6-to a close, the County attempted to add yet another inspection report to the hundreds of inspection and audit reports already on the QA record.
ALAS-788 at 93-94.
While the Board, over LILC0's objections, permitted admission of these inspection results, it limited new testimony to those parties with first-hand knowledge of the inspection. The County's witnesses had none.
i ALAB-788 at 93 t: quoting Tr. 19.334-33 (Brenner)). The Licensing Board concluded that Ccinty testimony on the subject would not be useful because the County's counsel had represented that its witnesses only " wished to outline areas for exploration rather than introduce new, affirmative expert analysis."
ALAB-788 at 95.
The Appeal Board agreed finding also that the County had failed to show that the exclusion of testimony was prejudicial in any way.
M.
The present Petition makes no arguments not already rejected below and provides no basis for Commission rettew.
D.
Systems Interaction 1.
SC Erroneously Attacks LILCO's !!ethodology (Petition at e-7)
To support its argument that the Appeal Board's factual conclusion con-cerning LILCC's systems interaction methodology is clearly erroneous, the County points only to one interaction (the ":liche lson concern") that LILCO al-legedly failed to identify.
Petition at 6.
But the County concedes that "GE and apparently LILCO had identified this problem I,d.
Thus the ex-ample fails to support the conclusion that the Appeal Board's decision was clearly erroneous.3/ ?!oreover, since the Appeal Board's conclusion was 3j in effect, the County merely disagrees with LILCD's resoluttor,of the lichelson concern. As the record reflects, however, the NRC Staf f, the Li-censing Board and the nppeal Board agree that tho !!ichelson concern presented j
no safety hazard. ALAB-786 at 30-32.
7 consistent with the Licensing Board decision, 10 CFR $ 2.78e(b)(4)(ii) commends denial of the petition.
2.
The County's USI A-17 Claim Is Incorrect (Petition at 7)
The County claims (Petition at 7) that the Appeal Board's systems interaction conclusions are clearly erroneous under the North Anna standard, ALAB-491, 8 NRC 245, 247-48 (1978), because insufficient progress has been made in resolving generic unresolved safety issue A-17 (systems interaction).
The Appeal Board, however, held that its North Anna decision was not applicable here where the unresolved safety issue did not involve an identi-fled safety concern but was, rather, confirmatory.o/ ALAB-788 at 3a-33.
Moreover, both the Licensing and Appeal Boards agreed that systems interaction had been adequately addressed for Shoreham through LILCO's many systems inter-action studies.
E.g.,
ALAB-788 at 34; 18 SRC at 553.
The County has also failed to allege any specific safety concern with systems interaction at Shoreham. Thus, the Appeal Board decision is neither clearly erroneous nor inconsistent with the Licensing Board's findings and review is thus barred by 2.76a(b)(4)(ii).
E.
The Appeal Board Properly Vacated the License Condition on Important to Safety (Petition at 7-8)
Although the Appeal Board vacated the Licensing Board's license condition concerning the definition of important to safety, its decision is correct, p/
Confirmatory status is an acceptable basis for resolving a USI.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plant. Lnits 1 and 2), LBP-bl-21, 1* NRC 107, 116 (1961).
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a The Appeal Board's action is consistent with the guidance provided by the Com-mission in CLI-84-9.
See 19 NRC at 1325.
As ALAB-788 reflects, the guidance issued af ter the Licensing Board's decision obviated any need to impose a li-cense condition.Z/ ALAB-788 at 32-36 F.
Evidentiarv Depositions t. Petition at S-9)
The only Emergency Planning matter raised with at'y specificity by Suffolk County concerns the Licensing Board's proposal, after soliciting the parties' views, to use publicly held evidentiary depositions, supplemented by live cross-examination before the Board on selected matters of substance and demea-nor, as the basis for interrogating prefiled testimony in Phase I of the Emer-gency Planning issues.8;'
LBP-62-107 1o NRC loo 7 (1982). When Suffolk County refused to participate in the board's intended procedure, the Board held the County, after notice, in default and dismissed its " Phase I" contentions.
l LBP-82-115, le NRC 1923 (1982).
Citing no authority more specif!c than 6 189 of the Atomic Energy Act and l
"the norm and practice of NRC proceedings," Suffolk County asserts here, as before the Appeal Board 9*
that the use of these depositions, supplemented by hearings, violated Intervenors' due process rights.
Petition at 8.10/
I/
Imposition of a license condition that may be inconsistent with CLI-84-9 is inappropriate given the potential for rulemaking on the subject.
See 19 NRC at 1323; see also Utility Safety Classification Group Petition for Rulemaking (October 30, 1984).
8/
For the history of events leading to this division of issues, sg ALAB-788 at 137-40.
9' The pertinent portion of Suffolk County's Petition (pp. 8-9) is only a slightly condensed version of its Brief in Support of Appeal of Licensing board Partial Initial Decision (December 23, 1983) at 90-98.
10/ While Suffolk County asks the Commission to order hearings as a remedy, it does not complain that dismissal of contentions was an improper remedy for (footnote continued)
9 a
Suf folk County's complaint does not merit Commission review.
Noth ir.g cited by the County suggests the unlawfulness of evidentiary depositions, either absolutely or in the context of enhancing the ef ficient conduct of an already lengthy and complex proceeding. To the contrary, ample authority cited by both the Licensing Board and the Appeal Board supports the conclusion that neither the Atomic Energy Act nor the APA rigidly prescribes any particu-lar form of hearing so long as full and true disclosure of the facts is per-mitted and parties are not prejudiced.
As the Appeal Board put it in finding the Licensing Board's position " unassailable"-
The County's argument regarding the Board's proposed procedure has a single theme -- i.e.,
that section 189 of the Atomic Energy Act. 42 USC $ 2239, provides parties with an opportunity for a hearing and such hearing must be an oral presentation before a Licensing Board. The County's brief is wholly bereft of authority to support its position.
The Board's decision, on the other hand, is thoughtful and well documented.
As the Board notes, section 189 does not in terms specify the nature of the hearings that must be held.
But section 181 of the Act. 42 USC $ 2231, brings into play the procedural ground rules estab-lished by the Administrative Procedure Act (APA). 5 USC $ 551 et seq.
[T]he APA expressly autho-ri;es agencies in licensing cases such as this to adopt procedures for the submission of all or part of the evidence in written form as long as the parties are not prejudiced.
The right to submit rebuttal ev-idence and conduct cross-examination, moreover, is not unlimited; it is bounded by a need for a full and true disclosure of the f acts.
ALAB-788 at 141-142 (footnotes omitted).
(footnote continued) default.
Rather, its complaint is directed to the use of the procedure pro-posed by the Licensing board and to the finding that it was in default for re-fusal to go forward under that procedure.
I o e Suffolk County has made no showing of actual prejudice, but only the "most generalized, undocumented claim" which ignores the fact that The Board was committed to review the evidentiary depositions carefully and take such procedural steps (including oral cross-examination as were necessary to ensure full development of the record and a fair and thorough resolution of any matters the County wished ultimately to raise.
ALAB-786 at 142-143.
Indeed, the County's refusal to participate in the hear-ings prevented any demonstration whatever of impediments to full and fair disclosure or other arguable prejudice, and, in the Appeal Board's words, "de-prives its argument on appeal of any substance." ALAB-788 at 143. The issue does not merit review under 6 2.786(b)(1).
Conclusion The Petition for Review should be denied.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY f
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- T. S. Ellist III Donald P. Irwin Anthony F. Earley, Jr.
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 5, 1984 1
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LILCO, Duccmbar 5, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND. LIGHTING COMPANY-('Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL I hereby certify that copies of LILCO's Opposition to Suffolk
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County' Petition.for Review were served this date upon the follow-ing by U. S. mail, first-class, postage prepaid.
Chairman Nun-io J. Palladino Judge Howard A. Wilber United States Nuclear Atomic Safety and Licensing Regulatory Commission
. Appeal Board 1717 H Street United States Nuclear.
Washington, DC 20555-Regulatory Commission Washington, D.C.
20555 Commissioner James K. Asselstine United States Nuclear Judge Lawrence Brenner Regulatory Commission Chairman, Atomic Safety 1717 H Street, N.W.
and Licensing Board Washington, DC 20555 United States Nuclear Regulatory Commission Commissioner Frederick M.
Bernthal Washington, DC 20555 United States Nuclear Regulatory Commission Judge Peter A. Morris 1717 H Street, N.W.
Atomic Safety and Licensing Washington, DC 20555 Board United States Nuclear Commissioner Thomas M. Roberts Regulatory Commission United States Nuclear Washington, DC 20555 Regulatory Commission 1717 H Street, N.W.
Judge George A.
Ferguson Washington, DC 20555 Atomic Safety and Licensing Board Commissioner Lando W.
Zech, Jr.
School of Engineering United States Nuclear Howard University Regulatory Commission 2300 6th Street, N.W.
~1717 H Street, N.W.
Washington, D.C.
20059 Washington, DC 20555 Eleanor L.
Frucci, Esq.
Alan S.
Rosenthal, Chairman Atomic Safety and Licensing-Atomic Safety and Licensing-Board Appeal Board United States Nuclear
.. United States Nuclear Regulatory Commission Regulatory Commission Washington, DC 20555 Washington, D.C.
20555 Atomic Safety and Licensing Judge Gary J. Edles Board Panel Atomic Safety and Licensing United States Nuclear Appeal Board Regulatory Commission United. States Nuclear Washington, D.C.
20555 Regulatory Commission Washington, D.C.
20555 L.
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Atomic Safety and Licensing Martin Bradley Ashare, Esq.
Appeal Board Panel Suffolk County Attorney
. United States Nuclear H.
Lee Dennison Building Regulatory Commission Veterans Memorial Highway.
. Washington, D.C.
20555 Haupp auge,~ NY 11788 Edwin J.
Reis,.Esq.
. Stephen B.
Latham,=Esq.
Bernard M.
Bordenick, Esq.
John F.
Shea, Esq.
Office of the Executive Twomey, Latham & Shea Legal Director 33 West Second Street United States Nuclear Riverhead, NY 11901 Regulatory Commission Washington, DC 20555 The Honorable Peter Cohalan Suffolk County Executive-Herbert H. Brown, Esq.
County Executive /
' Alan.R. Dynner, Esq.
Legislative Building.
Lawrenc( Coe Lanpher, Esq.
Veterans Memorial Highway Kirkpatrick & Lockhart Hauppauge, NY 11788 8th Floor 1900 M Street, N.W.
Jay Dunkleberger Washington, DC. 20036 New York State Energy Office Agency Building 2 Fabian Palomino, Esq.
Empire State Plaza Special Counsel to the Governor Albany, NY 12223 Executive Chamber, Room 229 State Capitol Docketing and Service Albany, NY 12224 Branch (3)
Office of the Secretary James B.
Dougherty, Esq.
United States Nuclear 3045 Porter Street Regulatory Commission Washington, DC 20008 Washington, DC 20555 1
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't, V Anthony F E a r4hy," Jr.
Hunton & Williams Post Office Box 1535
~ Richmond, Virginia 23212 DATED:
December 5, 1984 J
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