ML17299B040

Views & Comments Opposing Coalition for Responsible Energy Educ 860112 Petition for Suspension of License NPF-46. Petition W/O Merit.Relief Ill Conceived

ML17299B040
Person / Time
Site:	Palo Verde
Issue date:	02/21/1986
From:	Van Brunt E ARIZONA PUBLIC SERVICE CO. (FORMERLY ARIZONA NUCLEAR
To:
Shared Package
ML17299B039	List: ML17299B038 ML17299B040
References
NUDOCS 8602250322
Download: ML17299B040 (35)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Xn the matter of ARIZONA PUBLXC SERVICE COMPANY, et al., DOCKET NO. STN 50-529 (Palo Verde Nuclear Generating Station, Unit 2)

VIEWS AND COMMENTS ON PETXTION FILED BY COALXTION FOR RESPONSXBLE ENERGY EDUCATION

1. INTRODUCTION By letter, dated February 5, 1986, the Office of Nuclear Reactor Regulation (NRR) provided licensee Arizona Public Service Company (APS) with a copy of a petition, dated January 12, 1986 (filed January 17, 1986) and an addendum thereto dated January 20, 1986 (filed January 21, 1986) which had been submit-ted to the Director, NRR, pursuant to 10 CFR 2.206(a), by the Coalition for Responsible Energy Education (CREE). Such letter invited APS to express'ny views or comments respecting the petition that APS wished the Director to consider in arriving at a decision on the petition. The following views and comments are submitted in response to such invitation.

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There appear to be three legal issues presented by the Petition. The first relates to the relief requested, the second, to the appropriateness of the adjudicatory process to deal with matters alleged, and the third, to the reopening of the issue of technical qualifications.

2.1 Relief Re uested.

Paragraph 1 of the Petition states that "The petition requests service upon Arizona Public Service Company/Arizona Nuclear Power Prospect (APS/ANPP) of an order to show cause, pursuant to 10 CFR 2.202, why the low power license of PVNGS-2 should not be suspended and further licensing activity for PVNGS-2 deferred, pending completion of the requested regulatory and corrective actions, and a proceeding initiated under 42 U.S.C. 2239(a)."

On its face, this statement of relief requested appears to comply with the Commission's regulations and to comport with the standards of fairness required by the Atomic Energy Act of 1954 as amended, the Administrative Procedure Act (APA) and the due process clause of the United States Constitution. In short, the statement requests the initiation of an adgudicatory

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"show cause" proceeding to determine whether or not the requested administrative action, i.e., suspension of a license, should be taken.

However, this opening statement is misleading and at odds with the relief which the petition actually seeks.

Paragraph 78 of the Petition (page 80) baldly states the request that the PVNGS-2 license be suspended without an hearin ! It is impossible to conceive of a more blatant violation of the basic rules of fairness mandated by law, absent some incontrovertible need for emergency action which is not present here.

Citations to statutory provisions and Judicial deci-sions respecting the Commission's discretionary authority to suspend licenses are irrelevant to the question of whether it can do so without any hearing. Similarly, citations respecting the placement of the burden of proof in "show cause" proceedings are irrelevant to the Commission's authority to suspend licenses without a hearing.

Clearly, the Commission may take emergency action when there is an immediate threat to the health and safety of the public. But, such circumstances are not present here, nor does the petition offer any bases on which the Commission could take

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the drastic action requested. Assuming for purposes of argument that all of the allegations and conclusions in the Petition are true (and they are nct) and that a maxima facie case has been made justifying initiation of a "show cause" proceeding (and it has not), no evidence has been presented to )ustify the drastic emergency action of license suspension without a hearing.

2.2 Ad udicator Proceedin s vs. Enforcement Processes The Petition puts at issue the question of the role of the adjudicatory process in the enforcement of the Commission's licenses and regulations. In essence, the Petition complains that "previous inspection and enforcement activities were inadequate" and questions whether such activities are likely to uncover "generalized organizational inadequacies." (Petn para. 22 at p. 11) But nowhere in the Petition is it explained how or why the adjudicatory process can cure the alleged inadequacies in a more effective way. Indeed, the Petition acknowledges that the adjudicatory forum is not the appropriate mechanism to address the questions raised since it proposes initiation of a "Special Management Inspection and Oversight Team" and other inspection and enforcement actions as may be deemed necessary. (Petn para. 78 at pp. 52-53)

It is di f f icult to discern the basis for CREE's complaint against the Office of Inspection and Enforcement

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(I6E). Certainly, almost all of the facts and conclusions alleged in the Petition stem directly from inspection reports and notices of violations issued by IGE or from the latest Systematic Assessment of Licensee Performance (SALP) Report> which in major measure is based on analyses of such inspections and notices. Also certainly, CREE ought not complain about the increase in the number of resident inspectors from 3 to 5 during the last SALP period, nor the ten-fold increase in inspection activities at Palo Verde over the past 6 years. The following table illustrates the dramatic increase in inspections at Palo Verde. Zt also gives some perspective of the improvement in the effectiveness of Palo Verde management over the past two years.

INSPECTION INSPECTION HOURS PER YEAR HOURS VIOLATIONS VZOZATION 1980 1120 187 1981 1343 269 1982 1044 209 1983 5503 27 204 1984 7023 24 292 1985 12051 22 547 U. S. Nuclear Regulatory Commission, Region V, Syste-matic Assessment of Licensee Performance for Palo Verde Nuclear Generating Station, Report Nos. 50-528/85-36, 50-529/85-38, and 50-530/85-28, Evaluation Period 4/1/84 9/30/85, Assessment Conducted 11/14/85.

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In any event, however, an adjudicatory show cause proceeding against a licensee is not the proper mechanism for asserting a complaint against ISE. In fact, it is unlikely that CREE for all of its self-righteous posturing could establish standing to challenge any office of NRC as to its performance of its responsibilities. And even if it could establish standing, it could not establish that an Atomic Safety and Licensing Board (ASLB) has jurisdiction to order any NRC office in the perfor-mance of its duties.

To the extent that CREE professes to have some magical measure of licensee performance (see Petn. para. 68 at page 46) that is better than the well-established SALP reviews on which CREE relies so heavily, its remedy lies in the rulemaking process not in an adjudicatory hearing.

2.3 Reo enin the Issue of Technical ualifications A challenge respecting the competence of licensee management is nothing more than a challenge of licensee technical qualifications. This matter has already been explored fully by NRC, and APS has been found to be technically qualified. The opportunity to raise such an issue has long since expired.

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Clearly, the burden upon CREE to reopen this issue now is heavy indeed.2 But the Petition does not address in any manner the established criteria which must be satisfied to warrant reopening.3 Presumably, if it were to have done so, the argument would have been made that reopening is )ustified, because the "new information" obtained from the SALP Report and other inspection reports would have led to a different result than had been reached initially. However, such an argument, if made, must fail, because the "new information" does not meet the required standard.

When one looks at the latest SALP Report, one finds clearly stated at the outset that:

"Overall, we find that your performance of licensed activities at the Palo Verde Site was considered to be satisfactory during this assessment period."

This conclusion, which is borne out by the ratings assigned in 19 functional areas, provides no basis for reopening the issue of APS'echnical qualifications. In every functional Kansas Gas and Electric Company, et al., 7 'NRC 320, 338 (1978).

The citations and discussion in the Petition respecting the authority of the NRC to conduct "discretionary" hearings simply beg the question of the standards for reopening issues that have been previously decided.

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area the per f ormance rating was Category 2 or better. By definition, the rating in Category 2 means that:

Licensee management attention and involvement is evident and are concerned with nuclear safety; licensee resources are adequate and are reasonably effective such that satisfactory performance with respect to operational safety and construction quality is being achieved In light of the conclusions from the SALP Report, the Petition simply does not meet the standards required for reopen-ing a proceeding.

3. Other Relief Re uested.

3.1 S stems Interactions and Reliabilit Studies.

One item of relief requested by the Pet1tion is the completion of systems interactions and rel1ability studies as recommended by the Advisory Committee on Reactor Safeguards (ACRS) in its report to the Commission dated December 15, 1981. (Petn para. 78 at pp. 52 53) In 1ts discussion of this matter, (Petn para. 56 at pp. 34-35) 1t is apparent that CREE rel1ed solely upon newspaper accounts of the ACRS meeting on

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November 7, 1985, in arriving at the conclusion that the failure to make such studies reflected upon APS management competence.

If, instead of relying upon unreliable newspaper accounts, CREE had performed some simple research, such as looking at Supplement No. 1 to the Safety Evaluation Report (SER Supp. 1) or examining the transcript of the ACRS meeting, would have become apparent that the decision to defer the additional studies as recommended by ACRS was not made by APS management. Rather, it was a reasoned decision deliberately arrived at by the Regulatory Staff on the basis that the focus and direction of the studies should await resolution of Unresolv-ed Safety Issue (USI) A-17 Systems Interaction.

Clearly, this well-reasoned decision of the Regulatory Staff has no relevance to APS'anagerial competence, and the inaccurate newspaper account provides no basis for modifying that decision.

3.2 Resolution of Auxiliar Pressurizer S ra S stem APSS Issues.

The Petition also requests that an "acceptable perman-ent resolution of all outstanding APSS issues [be required] prior to the reinstatement of the PVNGS-2 operating license." (Petn para. 78, p. 53) Again, the basis for this requested relief

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appears to rest on newspaper accounts of the ACRS meeting. (Petn para. 57, p. 35-36)

The fact is that the modifications which enhanced the reliability of the APSS constitute the final resolution of the APSS issues in a manner that meets all regulatory requirements applicable to Palo Verde -- and the ACRS so understood these facts. (ACRS transcript, p. 51, Meeting Nov. 7, 1985)

Apparently, CREE has confused the resolution of the APSS issues with the open question of whether or not pressure operated relief values (PORV's) should be required on all Combustion Engineering plants. The Commission has decided, with the concurrence of ACRS, that the resolution of this question should await the resolution of USI A-45 Shutdown Decay Heat Removal Requirements. It is our understanding that the Regula-tory Staff's report on this generic issue is scheduled for completion in 1986.

4. Mana ement Com etence of APS.

Response to each and every allegation and conclusion asserted in the Petition does not appear to be warranted. Por the most part they stem from recommendations and criticisms found in the SALP Report. The point has already been made that the SALP Report does not support CREE's contentions.

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respecting the operating experience during the Unit 1 power ascension program. (Trans. pp. 40-44, ACRS Meeting, 11/7/85; see also Trans. pp. 41-55, ACRS Subcommittee Meeting, 11/5/85) As to operating crews, the conclusions were that the "experience reflects well on the training and qualifications of the operating crew", and "overall, we rate performance of the operating crew H

quite high."

As to the technical support organization, Mr. Crews concluded that "performance has been acceptable" and added that "licensee management has taken steps to improve upon the utiliza-tion of the technical staff as the testing program has progressed and experience has been gained . . . their utilization of performance has improved, as experience has been gained, particu-larly in the area of post-trip and post-event review and evaluation."

As to management, Mr. Crews stated: "We have been generally satisfied with the performance, and there has again been steady improvement. Management has demonstrated a healthy attitude toward critically examining the performance of the programs and the managing systems upon which they must rely for effective control for operational activities."

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The final conclusion reached by Mr. Crews was:

     "The improvements,    which have    come about as the result of Unit   1  experience,  we   feel, should fully expect to result in measurable         improvements in the overall performance of Unit    2 Zt would be without reason to find that      this record of achievements    and improvements    was  the result of anything except good, competent management.

The observations reported by Region V to ACRS are supported by comparing the most recent SALP Report with the preceding report. The comparison shows that the only Category 3 ratings in the earlier SALP Report (Preoperational Testing and Startup Testing) improved to Categories 1 and. 2, respectively. 12

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The number of Category 1 ratings doubled from 2 to 4.4 Addition-ally, improved trends were observed with respect to three Category 2 ratings. In only one area Emergency Preparedness was a decline in the SALP rating reported from Category 1 to Category 2. However, in this area the latest SALP report concluded "based on the licensee's response to the identified program weaknesses and performance the October 2, 1985 exercise, some improvement has been noted." This improvement trend is also confirmed by Inspection Report Nos. 50-528/85-34 and 50-529/85-34, issued November 27, 1985, which shows that the deficiencies noted in SALP Report respecting the emergency preparedness training program had been corrected. 4 The table summarizing the SALP results by functional areas on page 3 of the SALP Report shows a rating of Category 2 for item 18 Preoperational Testing. The text discussion of this functional area clearly shows an assessment rating of Category 1.

           "Conclusion "Performance      assessment  Category 1.

Per f ormance steadily improved during the assessment period. The licensee's corrective measures implemented during the previous SALP period were effective in improving previously noted weakness as demonstrated by successful completion of the remainder of the Unit 1 preoperational test program and the perform-ance of the Unit 2 test program with vir-tually no problems noted." 13

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The achievements reported by Mr. Crews and reflected in the latest SALP report demonstrate aggressive and effect1ve management and competent technical qualifications. The steady improvements noted belie the CREE contentions.

5. Im acts of Incentive Plans.

The Petition raises the spectre that incent1ve plans and other rate matters may impose schedular and financial pressures on management which could interfere with the safe and reliable operation and maintenance of Palo Verde Unit 2.

                                           ,t The same   issue was raised 1n the CREE petition f11ed in 1984 with respect to the licensing of Unit 1. The decision by the Direc-tor,   NRR,   rejected such petition     on the grounds  that the   NRC was  alert to the potential impact of incentive plans and had instituted a generic study of such plans and their potential impacts. Moreover, the decision noted that 1ncreased     inspection of Palo Verde was planned and would provide evidence of any deterioration in licensee performance. As previously noted, the inspection activity at Palo Verde increased dramatically in 1985 and did not produce any evidence of a reduction in management's commitment    to achieve safe and reliable operat1on and maintenance of Palo Verde. On the contrary, the ratio of infractions-to-inspection manhours decreased significantly in 1985.

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The record shows that the power ascension test program for Unit 1 was conducted in a deliberate, conservative fashion. There is no evidence that the incentive plans imposed upon APS by the Arizona Corporation Commission (or on the other Palo Verde licensees by their respective rate regulatory authorities) led to any shortcuts that undermined the safety of Unit 1 operation. Accordingly, the spectre raised by CREE must be viewed as no more than what it is pure speculation so tenuous that it can provide no support for the requested suspension of the Unit 2 operating license.

7. Conclusion In summation, it is evident NRR and Region V, together with the ACRS, have engaged in a comprehensive and penetrating scrutiny of Palo Verde in all of its aspects, but with particular emphasis on management qualifications and involvement in day-to-day activities. The record shows that criticisms and recommenda-tions generated by this close scrutiny have been taken seriously and responded to affirmatively by management.. The examples of this kind of response are numerous: e~ employment at upper management levels of additional personnel with nuclear operating experience; institution of programs to improve response time for disposition of (CAR's); efforts by top management,to improve compliance with technical specifications and FSAR commitments; 15

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timely completion of the equipment qualification program; successful implementation of fire prevention measures; remarkable operation by shift crews; improvements in preoperational testing; and currently, management direction in the preparation of LER reports. All of these examples and more are indicative of responsible management seeking to achieve excellence. Accordingly, it is submitted that the CREE Petition is without merit. IRE activities have identified areas where improvements can be made, and APS management has responded aggressively to achieve improved performance. The suspension of the Unit 2 operating license is totally unwarranted and the other relief requested is ill conceived. ARIZONA PUBLIC SERVICE COMPANY By Edwin E. Van Brunt, Jr. Executive Vice President-ANPP 16

t1mely complet1on of the equipment qualificat1on program; successful implementat1on of fire prevention measures; remarkable operation by shift crews; improvements 1n preoperational testing; and currently, management direction in the preparation of LER reports. All of these examples and more are indicative of responsible management seeking to achieve excellence. Accordingly, it is submitted that the CREE Petition is w1thout merit. ISE activities have identified areas where improvements can be made, and APS management has responded aggressively to achieve improved performance. The suspension of the Unit 2 operat1ng license is totally unwarranted and the other relief requested is ill conceived. ARIZONA PUBLIC SERVICE COMPANY By Edwin E. Van Brunt, Jr. Executive Vice President-ANPP 16

Dated: February 21, 1986 STATE OF ARIZONA )

                            )   ss.

COUNTY OF MARICOPA ) Edwin E. Van Brunt, Jr ., represent that I am I,Vice the Executive President-ANPP, that the foregoing document has been signed by me on behalf of Arizona Public Service Company with full authority to do so, that I have read such document and know its contents, and that to the best of my knowledge and belief, the statements made therein are true.

                                             ~

E. Van

                                               'dwin Brunt, Jr.

Sworn before me this 21st day of February, 1986 Notary Public

                                          ~Y Commission Expires Feb. 11, 1989 17

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