ML20236H402
| ML20236H402 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/29/1987 |
| From: | Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20236H405 | List: |
| References | |
| CON-#487-4752 OL, NUDOCS 8711040103 | |
| Download: ML20236H402 (29) | |
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DOCMETED
. UWRC OCTOBER 29, 1987 )
UNITED STATES OF AMERICA y gn -2 P5 27 1 l
NUCLEAR REGULATORY COMMISSION f BEFORE THE ATOMIC SAFETY AND LICENSING BOARD bFFtCE OCKElhc Of 5ECR I
in the Matter of ) l
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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET AL. ) 50-446-OL
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(Comanche Pcak Steam Electric ) l Station, Units 1 and 2) )
NRC STAFF RESPONSE TO LICENSING BOARD QUESTIONS 1
- 1. INTRODUCTION By Order dated October 8, 1987, the Licensing Board directed the parties to submit written answers to three questions posed by the Licens-l ing Board. The parties' answers were to be filed such that they were in the possession of the Licensing Board and the other parties by October 16, 1987. The Licensing Board indicated that the parties should be prepared to discuss these questions at an October 20, 1987 prehearing conference. O The NRC staff (" Staff") herein provides its response to the Licensing Board's questions. U i
-1/ The Octc.ber 20, 1987 prehearing conference was rescheduled to November 16-17, 1987, see October 13, 1987 Conference Plan Order, and further rescheduled to November 2-3, 1987, see October 20, z^
1987 Federal Register Notice Order.
-2/ The Staff's response is flied pursuant to an extension of time grant-ed by the Licensing Board on October 9, 1987, under which the Staff's response is to be in the hands of the Board and parties on October 30, 1987.
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- 11. BACKGROUND / 0 lN 1 q 'j On August 20, 1987, Applicants filed a Motion for Establishment ofL '
Q' .s 1 Schedule. Applicants' proposed schedule would focus the litigation on - i1 various reports issued by the CPRT and the CAP (eg, Results Reports,- ]
the Collective Significance Report, Project Status. Reports). )
j intervenor CASE filed its answer on September 28, 1987. CASE l pt 4 contended that unless there was 'a " finding," whether by admission or ,
declaration, that there was a pervasive breakdown of the historical CPSES 5
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QA/QC Program, CASE had the right to continue to litigato whether such a breakdown had occurred. See CASE's Answer to A'pplicants' 8/20/87 lIH j
i Motion for Establishment of Schedule at 10-11. According to CASE, if it prevalls on that matter, the Applicants would then "come . forward with I their rebuttal case," which CASE assumed would be the results of the .
CAP. Id. at 11. The CPRT Results Reports would not be relevant, in CASE's view, unless those reports were relied upon by Applicants, or by CASE in the course of showing that there was a pervasive breakdown.
Id. at 11-12.
The Staff's response was filed on - October 2, 1987. - The Staff ar-gued that litigation in this proceeding should focus on whether there is now reasonable assurance, based in large part on the corrective action l l
efforts,of the Applicants, that CPSES can be operated without undue risk to the 15 ubc health and safety. NRC Staff Response to Applicants' Mo - ~.'
tion for Establishment of Schedule at 7-9. As discussed in the Staff's response, litigation of the adequacy of the historical QA/QC' Program at 1
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l CPSES would be irrelevant, since litigation .would inevitably focus on the
. , i adeq'uacy of the Applicants' corrective action initiatives. Id. at 8-9. J
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Ill. DISCUSSION i I l
QUESTION ONE 3
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, What documents do Applicants rely on(to establish the adequacy of design 'and construction? ,s j
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The Licensing BoarN's query can be interpreted in two different
', r ways: (i) what dc,cuments do Applicants rely upon in support of their - ,
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l o j 1 operating licenso application to; the NRC, with regard to design and con- 1 1
. struction; hr' (ii) what documents will Applicants rely upon in the l
operating license hearing before the Licensing Board to address Contention 5. The Staff will respond to each interpretation separately.
1! '
?* s A. Documents to be Relled Upon in Support of the Operating
- License Application '
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!, The Commission's $ssic ' requirements for technical information on \
s design and construction b are sit forth in 10 C.F.R. Section 50.34.
I' linder Section 50.34(b), an applicant for an operating license is required 3 o l
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'to submit a final safety analysis report ("FSAR") which describes the' facility, presents the design hesis and the limits on its' operation, and l, ' I presents a safety analyti.j of the structures, systems and compenents and
. of thd' facility".as a whole. The Applicants ' for CPSES. have submitted an
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3(i The Commission has separate requirements for submission of informa- 1
[ ,
tion on other ! subjects such as environmental matters, financial quall fications, eme/gsncy preparedness and technical specifications. See, '
1, eg , ,10 C . Ff.R. ti l 50.30, 50.33,-50.33a, 50.36. t j i
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I FSAR, and the Staff intends to rely upon the FSAR, as amended by Ap-i plicants, in its licensing activities for CPSES. I in its review of an FSAR, the Staff normally reviews and'relles upon supporting documentation submitted by an applicant which clarifles the
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FSA R. For CPSES, the Staff considers the various reports to be sub-mitted by Applicants on the CPRT and CAP (e.g., tha Collective -
Significance Report and the Project Status Reports b) as part of the supporting documentation for the CPSES FSAR which will provide the requisite assurance that Applicants have met their ilcensing commitments.
Accordingly, the Staff will review and rely on these reports during the course of its assessment of the CPSES FSAR.
B. Documents to be Relied Upon as Evidence in Hearing Applicants are the proper party to respond to the Licensing Board's inquiry regarding what documents they intend to rely upon in the operat-ing license hearing. The risk of non-persuasion in this operating license I
i
~4/ The Staff understands that a Project Status Report is to be sub-mitted for each of the 11 scopes of work (disciplines) ;
addressed by the CPRT and CAP. These scopes of work are:_ being Mechanical HVAC Civil / Structural Cable Tray Hangers Electrical Conduit Supports Trains A, B, and Train C greater than 2 inches Instrumentation and Control Conduit Supports Train C equal to or smaller than 2 Inches Large Bore Pipe Supports Equipment Qualification Small Bore Pipe Supports
l proceeding is borne by the Applicants, 5_/ and Applicants will determine how they will address Contention 5 - their " theory of the case." In turn, the Applicants' theory of the case would normally dictate what )
I ciocuments they will rely upon in their direct case. However, it should j be noted that the documents which Appilcants' witnesses may rely upon i during their cross-examination by other parties, as well as the documents which Applicants rely upon when cross-examining other parties' witnesses
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or presenting their rebuttal case, will largely depend upon the nature of j the evidence introduced and the arguments relied upon by the other parties.
QUESTION TWO l Whether or not the Board must make factual determinations about the ,
l extent of the historical breakdown in QA/QC for design and con-struction. Discuss the " holding" of cases cited as precedent in de-tall, including the significance of the factual setting.
A factual determination by the Licensing Board regarding whether l there was a breakdown in one or more areas of the CPSES QA/QC Program, separate from a finding on the adequacy of Applicants' -
corrective actions, is not a necessary prerequisite to concluding the litigatipn in this proceeding.
As discussed below, if Applicants and/or the Staff present sufficient evidence that Applicants' corrective actions ~~-
-5/ See 10 C.F.R. 6 2.732; Consumers Power Co. (Midland Plant, Units ,
1 and 2), ALAB-123, 6 AEC 331, 345 (1973).
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provide " adequate confidence" that safety-related structures, systems and components will perform satisfactorily in service, then there is reasonable assurance that CPSES can be operated without endangering the public health and safety. It may be necessary, in considering the adequacy of the corrective actions, for the Licensing Board to make factual determinations as to the extent of specific deficiencies (" breakdowns")
which are identified and/or verified by the' corrective actions' investigations. However, those factual determinations would be for the purpose of, and be made in conjunction with, determining whether the corrective actions proposed by Applicants properly addressed the entire scope of the problem. There would be no need to hold hearings devoted to the broader question, whether the historical CPSES QA/QC Program had functioned adequately prior to 1985.
Licensing boards are required in operating !! cense proceedings to make findings of fact and conclusions of law only with respect to matters in controversy between the parties, unless a sua sponte issue has been properly raised. 10 C. F. R. 5 2.760a. Contention 5, which is the only remaining unresolved contention in this proceeding , - questions the adequacy of the Applicants' QA/QC Program for CPSES to identify and
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correct construction b deficiencies. U Therefore, the findings which the Licensing Board must make under 50.57(a) are:
(1) Whether construction of CPSES has been substantially completed , in conformity with the construction permit and the application as amended, the provisions of the 1 Atomic Energy Act, and the Commission's regulations, to the extent questioned by Contention 5; and (2) Whether there is reasonable assurance that the plant can be operated without endangering the health and safety of the public, to the extent that Contention 5 argues otherwise.
In Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343 (1983), the Appeal Board pointed out where a quality assurance pro-I gram's adequacy is in question, the reasonable assurance finding is not dependent on a demonstration of error-free construction. Id. at 346.
Instead, the Appeal Board held that a two-pronged inquiry is necessary:
(1) whether all ascertained construction errors have been cured, and (2) whether, even if all known errors have been corrected, there has been "a breakdown in quality assurance procedures of sufficient dimensions to raise legitimate doubt as to the overall integrity of the facility and its safety-related structures and components . " id. According to the
-6/ The Licensing Board later expanded the matters for litigation to include the ability of the QA/QC Program to identify and correct design deficiencies.
-7/ A sent Contention 5, the Staff -- as opposed to the Licensing Board
- , would make the necessary findings regarding the adequacy of Applicants' QA/QC Program for CPSES. See 10 C.F.R. 5 2.760a; -r ,'
Union Electric Co. (Callaway Plant, Unit 'TT, ALAB-750, 18 NRC 1205, 1216-17 (1983); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680,16 NRC 127, 143 (1982); South Carolina Electric and Cas Co. (Virgil C. Summer Nuclear Station, Unit 1), A LA B-B 63, 14 NRC 1140, 1156, n.31 (1981).
l Appeal Board, a " demonstration of a pervLsive failure to carry out the i
quality assurance program might well stand in the way of the requisite safety finding." id.
1 Until early 1985, litigation of Contention 5 was directed at answering '
the two questions posed by Callaway, viz., whether construction and design deficiencies exist at CPSES, and if so, whether they were indicative of a breakdown in the historical QA/QC Program for' CPSES.
However, in light of several activities, including the NRC's Technical Review Team ("TRT") inspections, it became apparent 'in late 1984 that .
there were deficiencies in the design and construction of CPSES which had not been detected and addressed by the historical QA/QC Program at CPSES. This called into question the adequacy of that Program. In early 1985, the Applicants requested a temporary suspension of hearings "to provide time for Applicants to analyze, and to prepare to respond to, the findings of the Technical Review Team relating to the . quality -
assurance / quality control programs for Comanche Peak." See January 30, 1985 Letter from Robert Wooldridge to Chairman Bloch.
Since that time, Applicants have developed and begun implementing a number of corrective action programs in the areas of _ design, construc-tion , OA/QC, and testing. In the area of - design, Applicants have committed to conduct a revalidation of the safety-related design of the CPSES plant, with the exception of specified vendor designs. As part of I that revalidati5n effort , Applicants have committed to perform = a .-
comprehensive review of all safety-related designs, so as to address all specific design concerns that were raised in the hearings prior to 1985, and by external sources. Applicants have also said they will address all
l specific construction, QA/QC and testing concerns raised in the hearings prior to 1985, as well as those issues raised by external sources. See l June 25 and August 20, 1987 Letters from Applicants to the Staff. More l importantly, Applicants have committed to conduct a sample-based reinspection of construction in the plant, together with root cause and generic implications assessments, and will determine If there are .
1 programmatic or cross-disciplinary implications of deficiencies which are discovered during the CPRT investigations of construction, QA/QC and testing . See CPRT Program Plan , Appendix C. They have also committed to performing comprehensive hardware validations considering both the validated design and the CPRT's recommendations. See September 8, 1987 letter from Applicants to the Staff. Applicants have also reorganized their managerial structure and appointed many outside individuals to newly-created management posts.
By committing to address all previously-ascertained deficiencies -in.
1 desigre, construction, QA/QC, and testing, the Applicants' corrective action initiatives are intended to address, correct and prevent these deficiencies from recurring. Therefore, Appilcants' corrective actions should address and directly answer the first prong of the Callaway test
-- whether "all ascertained construction errors have been cured."
Moreover, by committina to a comprehensive revalidation of safety-related designs, and a hardware sampling program coupled 'with root cause'and" generic implications analysos, Applicants' corrective action . , . .
Initiatives also are intended to identify, correct and prevent from recurring any previously-unidentified and as-yet-unconfirmed deficiencies which are safety-significant. Thus, the corrective action initiatives
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should also address the second prong of the Callaway test -- whether ]
there has been a " pervasive failure to carry out the quality assurance prog ram. " Rather than addressing Callaway's second prong by trying to l l
assess the adecuacy of the historical QA/QC Program, Applicants' l corrective action initiatives instead appear to address Callaway by j implicitly assuming that the historical QA/QC Program is indeterminate and, consequently, undertaking corrective actions in order to show that the structures, systems and components for CPSES are now properly l 1
designed, constructed and tested. That showing cannot be made unless the corrective action initiatives assess the identified deficiencies to determine if they are indicative of more fundamental or wide-ranging deficiencies. For example, if a deficiency is found with respect to an uncalibrated test device, at minimum some effort must be made to determine whether there were other instances where this uncalibrated device was used. However, an additional assessment should also be performed to determine the deficiency's " root cause," i.e. , whether the deficiency was due to poor procedures, poor training, or simply a random I
occurrence. Depending on the root cause, further consideration must be l given to whether there is a broader significance or concern. Again, using the example above, if the identified root cause was a poor procedure, the corrective action initiatives should also assess whether the same procedure was used for other dev!ces, and possibly whether other procedureA"contain similar weaknesses. Further assessment would also be -
appropriate if the CPRT found, at the completion of their investigations, a high rate of occurrence or pattern of occurrence of poor procedures for other activities.
Thus, based upon these investigations and assessments, Applicants may well conclude that there were deficiencies (" breakdown") in portions of the historical QA/QC Program for CPSES. What is important to note is that the extent (" pervasiveness") of any specific breakdown should be defined and delineated by these assessments. It follows , then, that Applicants' consideration of the extent of the breakdown should determine the scope of the corrective action necessary to ensure that no other deficiencies of the same type exist, and that there will be no recurrence of that type of deficiency. Therefore, there is no reason to consider as an independent matter for iltigation whether there were deficiencies equivalent to breakdowns in the historical CPSES QA/QC Program.
Rather, the Licensing Board should put aside the record developed to date in this proceeding on that subject and proceed directly to the results of the corrective action initiatives to determine if there is now adequate confidence in the design and construction of CPSES.
l The Appeal Board in at least one decision has held that where a corrective action program has been committe 4 to and is being imple-mented, the adequacy of the historical quality assurance program need no longer be litigated. Pacific Cas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALA B-763, 19 NRC 571, 576 (1984). In Diablo Canyon, the Appeal Board had granted interveners' motion to reopen, the record in the operating license proceeding based upon alle-gations 'of past deficiencies in the design quality assurance program, and -r -
PGSE's failure to comply with Appendix B. The interveners' motion was based upon deficiencies found by PGSE in the seismic design for Unit 1, findings by the Staff of deficiencies in PGSE's design quality assurance
l program, 0I - and further design deficiencies discovered in the course of I l
Implementing the IDVP. Id. at 574-75. Nonetheless, since PCSE had j 1
already begun an Independent Design Verification Program (IDVP), b the i
Appeal Daard recognized that "the real issue in the proceeding had moved quickly from that point," and held that litigation would focus on the 4
adequacy of the IDVP:
We [will] ... permit the applicant's various verification i efforts "to substitute for , and supplement, the applicant's )
design quality assurance program in order to demonstrate that ;
the Diablo Canyon plant is correctly designed." [T]he "real issue . . . has, in effect, moved beyond the question of what ,'
deficiencies existed in the applicant's Diablo Canyon design quality assurance program to the question whether the appli-cant can demonstrate that [its verification efforts] verify the l correctness of the Diablo Canyon design." #
19 NPC at 576, citing Appeal Board's earlier unpublished Order of ;
i August 16, 1983, at 5 (footnotes omitted); see also 19 NRC at 582. l l
Based upon the results of the IDVP, the Appeal Board concluded that there was " adequate confidence that [ Unit 1 of Diablo Canyon) safety l J
related structures, systems and components are designed to perform satisfactorily in service and that any significant design deficiencies . . . I l
resulting from defects in the applicant's design quality assurance program have been remedied." d at 619.
Id
'-8/ These deficiencies were apparent failures by PGSE's QA program to exercise control over design review, approval and distribution of design information within PGSE and between it and a contractor, and the failure to develop and implement adequate QA procedures and controls over other service-related contracts. See CLi-81-30, 7 14 NRC 950, 951 (1981) (Order to Show Cause).
~9/ The IDVP was mandated by the Commission in an order suspending a tow power license for Diablo Canyon. See CLi-81-30, 14 NRC 950 (1981). The Staff had issued the license after a Licensing Board decision authorizing the Staff to do so. See LBP-01-21,14 NRC 107 (1981).
i In many respects, the evolution of the corrective actions for design at CPSES mirrors the evolution of the IDVP at Diablo Canyon. PGSE first retained a consultant to develop an internal design verification program. ;
Subsequently, this evolved into an IDVP based upon a sampling program.
Diablo Canyon,19 NRC at 578-86, However, as the early findings of the samp!!ng program for seismic c'esign became known, PGSE decided to expand the reverification program to include the " total seismic design of l
safety-related structures, systems and components." M. at 580.
Non-seismic design was verified on a sampling basis. M. at 581-82.
This is similar to the evolution of Applicants' corrective actions for design at CPSES. The original intent of the CPR,T Program Plan in design was to perform a sampling-based confirmation of the adequacy of the original design. However, as this effort was implemented and results were gathered, the Applicants decided that a much broader scope of design validation was necessary. See CPRT Program Plan. This resulted in the developmer.' of the Corrective Action Program (" CAP"), and expansion of some subprograms under it, such as the design and j hardware validation effort. Thus, the overall scope and depth of the CPSES design revalidation effort is comparable to, if not greater than the IDVP in Diablo Canyon. This being the case, the Licensing Board should follow the precedent in Diablo Canyon, and focus its attention on the 4 adequacy of the CPSES corrective action effort for des;gn, and decline to make sepaMte Iindings on the historical QA/QC Program. .g Although the Diablo Canyon decision was limited to design reverification, the rationale underlying the Appeal Board's decision that it was unnecessary to consider PGSE's historical design QA/QC program is i
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equally applicable to the subject of construction QA/QC, Construction I
deficiencies are as amenable to the process of sample-based reinspection, root cause determination and assessment of generic implications as design I deficiencies. If a corrective action program for construction incorporates these activities, the Licensing Board should have a sufficient factual record upon which to base the " adequate confidence" findirig. Accord- l l
ingly, the Licensing Board should apply the rationale of Diablo Canyon to l l
the subject of construction adequacy, by looking only at the results of the CF-SES corrective action effort for construction, as opposed to continuing to litigate as a separate subject the history of construction deficiencies at CPSES.
Other NRC cases, while not directly holding that a historical QA j program's adequacy need not be litigated, nonetheless show that the adequacy of corrective (remedial) Oction programs are to be the focus of i a licensing board's inquiry into whether reasonable assurance exists for a facility. In Loulslana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5 (1985), the Appeal Board denied a motion to reopen the recard to admit a contention alleging a " systematic breakdown" in construction QA at Waterford. Id. at 12. After holding that the Callaway standard is also applicable to disposition of a motion to reopen on QA, id. at 14-15, the Appeal Board acknowledged that "[als a result of certain events and their subsequent investigation by the NRC staff, d' deficiencies wero found in several fundamental areas of the LPSL quality assurance program at Waterford. . . ." Id. at 18. However, the Appeal Board ultimately concluded that there was reasonable assurance that the plant can be operated safely, based on remedial actions
l undertaken by the Applicants. For examplo, in the area of QA staffing, the Appeal Board concluded that LP&L's QA staffing was inadequate. N i
Yet, the Appeal Board recognized that it was now impossible for LPSL to
" turn back the clock and enlarge the QA staff." Id. at 21. Therefore, the Appeal Board held that the proper inquiry "must be on whether any significant construction deficiencies resulted and remain as a consequence of LP&L's inadequate staffing, and whether LPSL has taken steps to I l
prevent understaffing in the future." id. Based upon a reinspection program by the Applicants and additional document reviews, the Appeal Board concluded that there were no significant deficiencies, and that LP&L had taken steps to prevent understaffing in the . future. Id. It is significant that the factual situation in Waterford is similar to that which CASE alleges was present at CPSES, viz., that the QA staffing was inadequate and that Applicants had failed to heed the warnings of the Management Analysis Company (MAC). See generally CASE's Motion for Establishment of an Evidentiary Standard and Request for Board Directed independent inspection (February 4, 1985). Nonetheless, the Appeal Board in Waterford found that there was reasonable assurance, based in part on LP&L's corrective actions. Accordingly, there is no reason this Licensing Board should not base its reasonable assurance determination on an inquiry into the adequacy of Applicants' corrective action initiatives.
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( -10/ The Appeal Board observed: "There is no real dispute that LP&L's
( construction QA staff was not large enough for the task it faced.
Further, the MAC Report apprised LPSL of the disadvantages of this situation, but LP&L took no action until the breakdown ' involving Ebasco and Mercury was clearly identified." _Id. at 20-21.
The Appeal Doard also held in the Byrc n_ proceeding that the l 1
reasonable assurance finding should be founded on a corrective action i
prog ram, rather than simply a record of past quality assurance program inadequacies. Commonwealth Edison Co. (P yron Nuclear Power Station, Units 1 and 2), A LA B-770, 19 NRC 1163 (1984). Interveners in Byron contended that Commonwealth Edison was unwilling or incapable to implement a quality assurance program which complied with Appendix B, based upon a record of deficiencies in that program. Id. at 1165. The I
Licensing Board found that such deficiencies had occurred, but was unwilling to make a finding that Commonwealth Edison was institutionally incapable or unwilling to maintain an adequate quality. assurance program.
Id. The Licensing Board indicated that although it had not inquired specifically into the reasons for the program's deficiencies, it appeared that the problems were attributable to the failure of the QA program to keep up with construction. Id. at 1166. That Commonwealth Edison was currently engaged in reinspection and other remedial actions was also acknowledged by the Licensing Board. Id. Nonetheless, the Licensing Board denied the operating license applicat!on. See LBP-84-2,19 NRC 36 (1984). The Appeal Board reversed the Licensing Board, holding that where a corrective action effort was being implemented, the Licensing Board should await the results of that effort, unless it determined that "It is ,not possible for the ascertained quality assurance fallings either to be cured or to be overcome to the extent necessary to reach an informed ,-
Judgement that the facility has been properly constructed." Byron , 19 NRC at 1169. As noted earlier, the Licensing Board was not willing to make such a finding for Byron. CASE has not contended that the l
deficiencies at CPSES are, as a conceptual matter, incapable of being corrected with appropriate corrective measures.
The Staff also points to two decisions in which corrective (remedial) action was the basis for a finding of reasonable assurance, despite historical failures of an applicant's quality assurance program, in Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-283, 2 l NRC 11 (1975), the Appeal Board reviewed a licensing board decision in a show cause proceeding. b Previously, the Appeal Board had found deficiencies in Consumers Pcwer's site quality assurance program, in the course of reviewing the licensing board's decision authorizing issuance of construction permits for the Midland facility. Midland, ALAB-106, 6 AEC 182 (1973). Subsequently, the Appeal Board directed that Consumers Power make periodic reports on the construction quality assurance program, and the status of construction work and an explanation of any deficiencies found. Id. at 186-87. After a period of time during which the Appeal Board monitored the status of construction, the Appeal Board I
issued a final decision affirming the issuance of the construction permits.
ALAB-152, 6 AEC 816 (1973). Shortly thereafter, the Staff discovered additional quality assurance deficiencies, principally involving cadwelding.
After informing the Appeal Board, the Director issued a second stop work order for Midland. Hearings were then held by a licensing board as to whether Consumers Power's corrective actions in cadwelding were
.c 11/ The Director of the NRC's Office of Nuclear Reactor Regulation had Issued a show-cause order to Consumers Power. In CLl-74-3, the Commission granted a request for a hearing filed by an intervenor, J the Sierra Club. See Consumers Power Co. (Midland Plant, Units 1 '
and 2), CLi-74-3, 7 XEC 7,12-13 (1974) .
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l acceptable. Despite the history of failure to properly implement past corrective action corrmitments , corrective actions in cadwelding were approved by the Appeal Board as an acceptable basis for the Licensing Board's finding that there was reasonable assurance that Consumers Power's quality assurance program would continue to comply with Appendix .8. 2 NRC at 12, 20.
In Houston Lighting and Power Co. (South Texas Project, Units 1 and - 2), A LA B-799, 21 NRC 360 (1985), remedial efforts by HPSL to address prior deficiencies in the construction quality assurance program l were held to be a proper part of an overall appraisal of HPSLs character and competence. Id. at 370-375. In South Texas, the Licensing Board was directed by the Commission to make an early, separate decision as l
part of the ongoing operating license proceeding, as to whether HPSL had the proper management character and competence to operate the South i Texas facility. CLI-80-32, 12 NRC 281, 290-92 (1980). The impetus for the Commission's action was a long history of deficiencies with the HPSL j construction quality assurance program, predating the issuance of even the South Texas construction permits. See South Texas, 21 NRC at 367.
Finally, in late 1979 through early 1980, the Staff undertook a special inspection of South Texas, culminating in a report which identified twenty-two non-compliances in construction activities, substantiated allegations of harassment and intimidation of quality assurance personnel, and cast' doubt on HPSL's management ability to manage construction in . ,..
accordance with the Commission's regulations. The inspection report proposed a civil penalty of $100,000, and was accompanied by an order to show cause. g. In response, HPSL acknowledged most of the Staff l
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l findings, paid the fine, replaced Brown and Root as architect / engineer and project manager, and later replaced Brown and Root as constructor.
! id. at 368. The Appeal Board approved of the Licensing Board's decision that in evaluating character and competence, it was appropriate to 4 consider HPSL's remedial' actions. M.at370-71. While the Appeal Board indicated past acts, such as an applicant's lack of candor, M. , would be .
sufficient to justify denial with regard to reformation, it did not state that in the absence of an allegation of past deception, the past actions of an applicant must be considered.
At minimum, Waterford, Byron, Midland and South Texas demonstrate that the reasonable assurance finding must ultimately hinge upon the adecuacy of the corrective or remedial actions undertaken by an applicant. And the lesson of Diablo Canyon is that where the corrective actions are broad enough, there is no need to litigate the deficiencies in a historical QA/QC program. Applicants for CPSES have committed to, and are in the process of implementing, comprehensive and in-depth corrective actions. The Licensing Board should follow the Appeal Board's precedent in Diablo Canyon by declining to make a factual finding on the adequacy of the historical CPSES QA/QC Program, instead, the Licensing Board should determine whether the corrective action initiatives provide adequate confidence that CPSES has been properly designed and constructed in accordance with the Commission's requirements, such that there is 'riason'able assurance that CPSES can be operated without undue .g.
risk to the public.
Such a decision would not only be consistent with past precedent, but would also be logical and fair to all parties, and would conserve the c_=_ __-_ - __ - _ -_________
Board's and parties' resources. For even if one were to assume that the litigation on the historical QA/QC program were to be completed and the Licensing Board were to make a finding that the Program was inadequate, the Licensing Board would be compelled by the Appeal Board's decision in Byron to provide an opportunity for the Applicants to show that the deficiencies or uncertainties attributable to the historical QA/QC Program have now been corrected. Litigatior, would inevitably focus on the App!! cants' corrective action initiatives - actions that would otherwise be l
required if the Licensing Board had made a factual finding that the l historical QA/QC Program at CPSES was inadequate. Therefore, as the Staff has previously argued, S the Licensing Board should proceed directly to determining whether Applicants' corrective actions demonstrate l the adequacy of CPSES design and construction. To do otherwise would l unnecessarily expend the resources of all participants in this proceeding, a result which would be contrary to the Commission's direction that hearings be conducted in an expeditious manner, consistent with the l rights of all parties. EI To conclude, the finding of reasonable assurance should be based on the Applicants' corrective action initiatives for CPSES. It may be necessary, in the course of considering the adequacy of the corrective actions, for the Licensing Board to make factual determinations as to the
, extent- of verified breakdowns in one or more areas of the historical f.
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12/ NRC Staff Response to Applicants' Motion for Establishment of Schedule (October 2,1987) at 9.
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13/ Statement of Policy on Conduct of Licensing Proceedings, CLi-81-8, 13 NRC 452 (1981).
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CPSES QA/QC Program. However, this finding would be for the purpose of, and be made in conjunction with, determining whether the corrective actions proposed by Applicar,ts properly address the entire scope of the l
probicm. A separate factual finding on the adequacy of the historical 1
QA/GC Program, following litigation devoted solely to answering that i matter, is not necessary.
l QUESTION THREE ,
1 1 Should there be a finding of historical inadequacy (breakdown) of QA/QC for design or construction, would Applicants have to show 1
that their "get well" program achieved the same. degree of safety as wculd have been achieved pursuant to adequate initial implementation 1
of Appendix B?
Regardless of whether the Licensing Board finds that the historical QA/QC Program for CPSES was inadequate (in whole or in part), or sim-ply concludes that the adequacy of that program is indeterminate, Applicants need only show that there is now reasonable assurance that ,
i CPSES can be operated without undue risk to the public health and safe-ty. That finding of reasonable assurance properly focuses on the ade-quacy of Applicants' corrective actions to identify and correct any 1
deficiencies stemming from the historical QA/QC Program, and to prevent their recufrence. As discussed below, the reasonable assurance finding g has never been predicated on a determination that a numerically defined l
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" level of safety" had been achieved by an applicant's quality assurance program. El Therefore, it would be erroneous for the Licensing Board to address the reasonable assurance question through a speculative -
comparison between a postulated " degree of safety" thought to be l incorporated into 10 C.F.R. Part 50, Appendix B, and the " degree of safety" obtained by the App!! cants' corrective actions for CPSES.
Applicants for construction permits and operating ilcenses are required to establish and execute a quality assurance program.
10 C.F.R. 5 50.34(a)(7) and (b)(6)(ll); 10 C.F.R. Part 50, Appendix B, Criterion 1. The purposc of a quality assurance program is to ensure that a nuclear facliity's structures, systems and components are " designed to acceptable criteria and standards, and . . . are constructed or fabri- 1 cated in accordance with their design," EI so that there is " adequate confidence that a structure, system or component will perform satisfac-torily in service". E See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 64 (1986)
-14/ This is consistent with the Staff's response to a Licensing Board inquiry (Memorandum (Statistical inferences from CPRT Sampling)
(November 11,.1985)) regarding the " level of safety" that must be assured by a statistical sampling program if the Licensing Board finds that there was an inadequate QA/0C Program at CPSES. NRC Staff Comments on Statistical Inference Memorandum (January 30, 1987)7 f,
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15/ Loulslana Power and Light Co. (Waterford ' Steam Electric Station ,
l Unit 3), A LA B-812, 22 NRC 5, 18 (1985); see also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Want, Units 1 and.2),
ALAB-763,19 NRC 571, 576 (19e4).
,16 / 10 C.F.R. Part 50, Appendix B, introduction.
4 Specific requirements for quality assurance programs are set forth in 10 C.F.R. Part 50, Appendix B, " Quality Assurance Crlteria for Nuclear Power Plants and Fuel Reprocessing Plants." The requirements " apply to all activities b affecting the safety related functions of those structures, systems and components [that prevent or mitigate the postu-lated accidents that could cause undue risk to the public health and safe-ty]. Appendix B, introduction. At the time Appendix B was adopted, tho Commission stated the Appendix B criteria are intended to assure that:
(a) Applicable regulatory requirements and the design basis
... are correctly translated into specifications, drawings, procedures and instructions.
(b) Systems and components fabricated and tested in manu-facturers' facilities conform to the specifications, draw-Ings, procedures and instructions.
(c) Structures, systems and components constructed and tested at the nuclear powerplant site conform to the specifications , drawings, procedures and instructions.
35 Fed. Reg. 10498-99 (June 27,1970). Subsequently, in amending Crl-terion I, the Commission Indicated that:
The intent of the quality assurance criteria provided in Ap- j pendix B to 10 C.F.R. Part 50 is to require that all activities j affecting the safety related functions of nuclear facility struc-tures, systems and components be accomplished in a systemat-ic and controlled manner so that there is a high degree of assurance that these acilvities are performed correctly.
40 Fed. Reg. 3210C (January 20, 1975). The criteria of Appendix B were also-to Ue "used for guidance in. evaluating the adequacy of the l
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-17/ These activities include design, purchase, handling, shipping, in-stallation, testing , operation and maintenance. Appendix B, introduction, l
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J quality assurance programs in use by the holders of construction permits l and operating licenses." 35 Fed. Ry. 10498, 10499 (June 27, 1970).
Nowhere in Appendix B, the statements of consideration accompany-l Ing the adoption and subsequent amendment of the regulation, or in the original notice of rulemaking is there a suggestion that the Commission intended Appendix B to define a specific, numerically quantifiable " level of safety" to be achieved by a quality assurance program. Nor do these l documents evidence an intent by the Commission that the adequacy of a quality assurance program be judged by reference to a numerically defined " level of safety." Rather, the Commission stated that the criteria of Appendix B are " requirements" for quality assurance programs, and that the criteria are to be used as " guidance" in evaluating the adequacy of such programs. Appendix B, Introduction; 35 Fed. Ry.10498,10499 j (June 27, 1970). In sum, given the lack of any discussion by the Commission of a quantitative " level of safety" at the time Appendix B was adopted, it would be improper for the Licensing Board to now attempt to define in quantitative terms a " level of safety" associated with Appendix B compliance, and to use such a standard as a basis for determining i l
whether reasonable assurance exists for CPSES. 1 Moreover, no licensing board, Appeal Board or Commission dectslon l
holds or otherwise suggests that reasonable assurance in the first in- I stance, is to be determined by reference to a quantitative " level of safe- l ty." See, eg, Callaway, 18 NRC at 346; Pacific Gas and Electric Co. 7 (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756,18 NRC 1340, 1344-45 (1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LB P-83-57, 18 NRC 445, 464, 581-82 (1983); see also
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Power Reactor Development Co. v. International Union, 367 U.S. 396,1107 (1961). Indeed, in Shoreham, the Licensing Board specifically rejected a -,
strictly mathematical determination of reasonable assurance in resolving a contention El questioning the adequacy of LlLCO's quality assurance program for both design and construction. EI The intervenor argued i
that a statistically valid samp!!ng program was necessary in order to extrapolate the results of a non-random sample to a non-homogenous pop-ulation. Id. at 584. The liconsing board explained:
We do need to conclude that the QA program in general meets NRC requirements and, despite whatever lack of mathematical rigor there may be in sampling and overall evaluation, there j remains reasonable assurance of nc undue risk to the health i and safety of the public. This we do, not on the basis of individual noncompliance or lack of rigor, but 'on the basis of the sum of all factors that contribute to acceptable design, construction and operation.
i Shoreham.18 NRC at 584 In sum, where the adequacy of an applicant's l
quality assurance program was questioned, no NRC decision has characterized the reasonable assurance finding as a determination as to whether a numerically defined " level of safety" had been achieved by the applicant's quality assurance program, instead, the question was whether that program complied with the criteria of Appendix B, and if not, whether that prevented the Licensing Board from finding that there was 18/ Three other contentions questioned the adequacy of LILCO's quality
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assurance for operations, and the adequacy of the NRC Staff's in-spection efforts. Shoreham,18 NRC at 578. All four quality assur-ance' contentions were litigated together. Id.
19/ See also the Licensing Board's statement that it would not "become
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Involved in a ' numbers game' of counting beans of different colors" in determining whether the deficiencies catalogued by the intervenor showed a breakdown in the LILCO quality assurance program.
Shoreham,18 NRC at 579-80.
t adequate confidence that the facility had been correctly designed, constructed, or tested.
Even in proceedings where deficiencies in the quality assurance program were acknowledged such that corrective actions were necessary, there are no cases that hold that the reasonable assurance finding hinges on e determination as to whether the corrective actions attain a quantitatively determined " degree of safety" comparable to that which would have been obtained had the quality assurance program functioned 1
properly. Rather, the cases show that the proper standard is whether the corrective actions provide reasonablo assurance that the facility's structures, systems and components have been designed and constructed such that the facility can be operated safely, in Loulslana Power and Light Co. (Waterford Steam Electric Station, ;
Unit 3), ALAB-812, 22 NRC 5 (1985), discussed above, the Interveners had filed a motion to reopen the record, based upon claims that there was
" serious , systemic breakdown" of the quality assurance program for Waterford. Id. at 16. While the Appeal Board found that there was a quality assurance breakdown, it also found that an extensive reinspection and document review effort failed to show any serious hardware or system defects. Id. at 43-44. Since "the problems that existed either have been corrected or are without significance insofar as the safe operation of the plant ,Is concerned" and because LPSL had taken action to preclude recurrence of the deficiencies, the Appeal Board concluded that there was r
"[rleasonable assurance that the plant can be operated sa fety . . . . "
Id. Waterford is consistent with the Appeal Board's holding in Diablo Canyon that reasonable assurance is determined by the adequacy of E------_-_---__---___--------_-------------------__--.------
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a corrective action program to identify , correct and prevent from ;
recur ring those safety significant deficiencies attributable to the deficiencies of the historical quality assurance prog ram , and not by reference to a quantitative " level of safety." i The Appeal Board specifically rejected the argument that the reasonablo assurance finding where corrective actions are undertaken by 4 an app!! cant can be made by reference to a quantitative standard.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), A LA B-763, 19 NRC 571 (1984). As discussed above in the response to Question 2, the Appeal Board reopened the record on the adequacy of design OA, because of errors in seismic design spectra and piping discovered by the applicant, PGSE, and the identification by the l
NRC staff of " serious weaknesses in the implementation of PGSE's OA prog ram . " Id. at 574-75. PGSE had already begun implementing an IDVP of the seismic and non-seismic safety-related design, in response to the Commission's Order in CLI-81-30,14 NRC 950 (1981). In resolving the 39 4 issues on the adequacy of the IDVP, the Appeal Board stated that its purpose was to:
[1] independently determine whether the verification programs and their results placed before us in the operating license proceeding are sufficier t to verify the adequacy of the Diablo Canyon design. To do this, the applicant's efforts must be l measured against the same standard as that set forth in the l Commission's quality assurance criteria,10 C.F.R. Part 50, Appendix.. B : whether the verification program provides 'ade-q 'uate confidence that a Isafety-related] structure, system or i
component will perform satisfactorily in service.' If the ap- 7-I plicant's verification effort meets this standard , then there will be reasonable assurance with respect to the design of the Diablo Canyon facility that it can be operated without endangering the health and safety of the public.
19 NRC at 573 (emphasis added). The Appeal Board explicitly rejected an argument that the reasonable assurance finding could be numerically q uar.tified . As with the intervenor in Shoreham, the interveners in Diablo argued that statistically based sampling or 100 percent reinspection j were the only means of determining the adequacy of the non-seismic design of the plant. Id. at 586-87. The Appeal Board rejected this argument, stating:
This argument overlooks the standard by which the appil-cant's program is to be ludged. We must determine whether ,
the nonseismic verification program provides ' adequate confi- l dence' that the nonseismic design of safety-related struc-tures, systems and components is proper so that such structures, systems and components will perform satisfactorily in service. This qualitative standard is not numerically quantifiable into expressions of probability of errors or error rates....Even if a statistically valid error rate were available to forecast the errors in the unreviewed portion of the nonseismic design,...such a rate would be of little utility in judging the adequacy of the verification of the nonseismic design of Diablo Canyon. In part, this is because no ac-ceptable rate of design errors for nuclear plants has ever been determined. Thus, the ultimate determination regarding the adequacy of the plant's design remains a qualitative dud ement and we must turn to the verification work that was performed to ascertain whether its scope and quality are suf-ficient to provide the requisite assurance of design adequacy.
Diablo Canyon,19 NRC at 587-88 (footnotes omitted and emphasis added).
In light of NRC decisions delineating the nature of the reasonable '
assurance Inquiry where an applicant has engaged in corrective actions, ,
adoption by the Licensing Board of a quantitative, numerically-derived standa,rd for determining whether there is reasonable assurance for CPSES would 'reirese'nt an unwarranted departure from established agency ..g precedent and would fundamentally alter the basic structure of this operating license proceeding. Accordingly, the Licensing Board should follow NRC precedent and base its reasonable assurance determination on l l
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the adequacy of the Applicants' corrective actions to identify and correct safety significant design and construction deficiencies.
IV. CONCLUSION The Licensing Board should adopt the iitigation schedule previously proposed by the Staff in its October 2, 1987 Response, which is consis-tent with the Stcff's responses to the Licensing Board's three questions.
Respectfully submitted ,
G Q
m k p) 1 a r S. ilzuno ounsel for NRC Sta f Dated at Bethesda, Maryland '
this 29th day of October,1987 I
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