ML20203P057

Motion of Governor Mm Cuomo,Representing State of Ny,To Compel Production of Audit Rept on Facility Personnel & Motion for Expedited Consideration.Certificate of Svc Encl

ML20203P057
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/14/1986
From:	Zahnleuter R NEW YORK, STATE OF
To:	NRC COMMISSION (OCM)
References
CON-#486-1111 OL, NUDOCS 8610200217
Download: ML20203P057 (37)

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t 9 00CKETED l, USHRC OCT 16 P2:57 ^ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFF:c:~c Before the Commission I@ ' 0 +. In the Matter of Docket No. 50-322--e k LONG ISLAND LIGHTING COMPANY October 14, 1986 (Shoreham Nuclear Power Station, Unit 1) MOTION OF GOVERNOR MARIO M. CUOMO, REPRESENTING THE STATE OF NEW YORK, TO COMPEL PRODUCTION OF AN AUDIT REPORT ON-SHOREHAM PERSONNEL AND MOTION FOR EXPEDITED CONSIDERATION

SUMMARY

Governor Mario M. Cuomo, representing the State of New York, hereby requests, pursuant to 10 CFR S2.730 (a).(1986), that the Commission compel Long Island-Lighting Company (LILCO) to 'immediately produce an audit report on the training and qualifications of Shoreham-personnel (hereinafter referred to as the " Audit Report"), which the NRC Staff discussed. in NRC ~ Inspection Report No. 50-322/86-10. The State of New York also seeks an order from the Commission compelling LILCO to immediately produce all documents created by or for LILCO after the audit which relate to the analysis or resolution of the 35 audit findings and 19 audit observations noted therein. 8610200217 861014 PDR ADOCK 05000322-g PDR 0563

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Further, the State of New York requests that the Commission direct. the NRC Staff to immediately produce the Audit Report and all documents pertaining thereto, including analyses and resolutions of the 35 findings and 19 observations.

Such action is necessary to remedy the NRC Staff's violation of the Federal Records Disposal Act (44 USCA S3301 et seq. ), and is required by the Federal Records Act (44 USCA S2901 et seq.) and the Federal Freedom of Information Act (5 USCA S552). The NRC Staff should also be directed to fully explain to the State of New York why the Audit Report was returned to LILCO and not retained'in its records, and provide a list of any other Shoreham-related documents which were treated similarly. Because these matters raise serious questions about LILCO's competency as a low-power licensee and full power license applicant, and the NRC Staff's integrity as the overseer of LILCO's management of Shoreham, the State of New York respectfully requests that the Commission expedite consideration of this motion. I 2

,9 BACKGROUND The State of New York learned of the Audit Report through NRC Inspection Report No. 50-322/86-10 (also referred to as the " Inspection Report"). The NRC Staff, Region 1, transmitted this Inspection Report by a cover letter dated June 25, 1986 to LILCO, Governor Cuomo, the New York State Consumer Protection Doard (CPB) and interested Isembers of the public. ! The Inspection Report relates" to a " routine resident safety inspection" conducted by the NRC Staff, Region 1, between April 16, 1986 and May 31, 1986. The following salient statement appears on page 12: [T}he QA Division Manager moved up scheduled Nuclear Review Board Training Audit and QA Training Audits to April from their originally schedules dates. The Training and Qualifications audit was conducted by a twelve man audit team -that expended over 1,000 man hours in audit preparation and conduct. The audit indicated proper qualification of personnel with no problems similar to the qualification deficiencies identified in the radiochemsitry [ sic]- area. (See Inspection Report 86-03 for further details).

However, the audit report did result in 35 audit findings and M observations spanning all areas from program / procedure development through record keeping.

As a result of these findings the aud.tt report recommended further management attention be applied in the training and qualification area to assure timely resolution of these audit findings and observations. [ Emphasis added] -1/ The NRC Staff also filed the Inspection Report in the NRC Public Document Room pursuant to 10 CFR S2.790(a) (1986). 3 .m-- - m

l The Inspection Report did not provide any more detailed information concerning the nature of these audit findings and observations. In July 1986, a representative of the State of New York asked the NRC Staff, Region 1, to provide a copy of the Audit 1 Report, but the NRC Staff refused to honor the request.- In a letter dated Augus't 7, 1986 (attached as Appendix A), the CPB asked-LILCO for a copy of the Audit Report. The CPB emphasized that since "the Shoreham Nuclear Power Plant is undergoing low-power testing, it is imperative that all facts relevant to the training and qualifications of Shoreham personnel be fully scrutinized." LILCO responded in a letter of August 21, 1986 (attached as Appendix B). It stated that a review by the CPB "would not be necessary" because the matter allegedly was within the purview of the NRC Staff, not the CPB. On September 18, 1986, counsel representing Governor Cuomo and the State of New York in all of the Shoreham licensing proceedings contacted LILCO's counsel to request a copy of the Audit Report and related documents. This telephone conversation is described in a letter dated September 18, 1986 (attached as Appendix C). In that letter, the State of New York asked LILCO to reconsider its position and produce the Audit Report no later than September 22, 1986, and produce related, derivative documents no later than September 25, 1986. 4

In a letter dated September 23, 1986 (attached as Appendix D), LILCO. stated that a substantive response would be forthcoming. However, in a letter dated September 29, 1986 (attached as Appendix E), LILCO failed to comply with the State of New York's. requests for the Audit Report and related documents. Instead, LILCO invited certain representatives of the State of New York to attend an oral presentation regarding the audit. In a letter dated September 30, 1986 (attached as Appendix F), the State of New York reiterated that an oral presentation in lieu of actual production of the Audit Report was unacceptable. Nevertheless, the State of New York again asked LILCO to reconsider and provide the requested documents no later than 2:00 p.m. on October 1, 1986. Having received no reply, the State of New York' is now forced to bring this matter before the Commission and to seek consideration'of this motion on an expedited basis. r I I 5

I. LILCO SHOULD BE COMPELLED TO IMMEDIATELY PRODUCE THE AUDIT REPORT AND ALL RELATED DOCUMENTS Inspection Report No. 50-322/86-10 indicates that the Audit Report requested by this motion sets forth 35 findings and 19 observations. The Inspection Report's discussion of the findings and observations is vague, so it is not possible to discern whether the findings and observations apply to the 4 training and qualifications of ail Shoreham personnel. However, it appears that at least some of the deficiencies involve training and qualifications of personnel in the radiochemistry area. Radiochemistry personnel are crucial to the safe operation of Shoreham because 'they are responsible for monitoring the levels of radiation throughout the plant. Erroneous data could lead to incorrect evaluations of plant conditions, which, in turn, could lead to significant on-site and off-site adverse consequences during a radiological emergency. The State of New York has a right to be informed of such a potentially unsafe condition within Shoreham. Accordingly, LILCO should be compelled to produce the Audit Report immediately so that the State of New York can analyze it. LILCO's performance in the radiochemistry training and qualifications area has been inadequate during the last year. Consequently, it has been subject to much review.

Briefly, LILCO's Quality Control Division conducted an audit in.May and 6

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June 1985 which resulted in several findings and observations. The Quality Control Division sent its audit findings and observations to the appropriate radiochemistry - personnel on July 15, 1985 and asked for a response before August 15, 1985. On October 15,- 1985, two months after the August 15, 1985 deadline, LILCO's radiochemistry personnel responded to LILCO's Quality: Control Division by assuring it that most of the corrective measures would be in place by December 31, 1985. To determine the effect of the corrective

measures, LILCO's Quality Control Division conducted a follow-up audit during the week of January 13, '1986.

The follow-up audit indicated that corrective measures had not been instituted. Soon thereafter, LILCO's radiochemistry personnel agreed to immediately adopt certain corrective training and qualification procedures described. in a Corrective Action Request dated January 27, 1986. _See NRC Inspection Report No. 50-322/86-03, at 1, 2. The NRC Staff conducted a special inspection of radiochemistry operations, referred to as NRC Special Inspection No. 50-322/86-03, between January 27, 1986 and February 14, 1986. The Special Inspection identified a large number of deficiencies, which were the subject of NRC Inspection Report No. 50-322/86-03 dated March 14, 1986, an NRC-LILCO Enforcement Conference on March 20,

1986, and a Corrective Action Letter (CAL 86-05) dated March 21, 1986.

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1 The NRC Staff then conducted another inspection between March 1, 1986 and April 15, 1986, which culminated in NRC l Inspection Report No. 50-322/86-08, dated May 29, 1986. This report cryptically stated at page.12: The inspectors are satisfied that the actions taken by the licensee in retraining and requalification of Radiochemistry Technicians are thorough and correct and satisfied the requirements of CAL 86-05 pertaining to technician qualification. The NRC Staff conducted the inspection that formed the basis for NRC Inspection Report No. 50-322/86-10 between April 16, 1986 and May 31, 1986. The number of audit findings (35) and observations (19) set forth in that report is unusually

high, especially since LILCO's radiochemistry personnel supposedly had just corrected deficiencies that the NRC Staff identified earlier in NRC Inspection Report No. 50-322/86-03.

In ' addition, these problems were widespread. Indeed, the 35 findings and 19 observations spanned "all areas from program / procedure development through record keeping." (Inspection Report No. 50-322/86-10, at 12) 1 These facts indicate that the training and qualifications of Shoreham personnel could be seriously deficient. It is imperative that the Audit Report be produced immediately so that the State of New York can obtain first-hand information about the nature and significance of the findings and 8

observations, analyze the underlying

data, and determine whether further action by the Commission might be required.

LILCO's rejection of our requests for the Audit Report suggests that LILCO is concealing important information bearing on the safety of Shoreham. This increases the State of New York's need to promptly obtain the Audit Report. LILCO's continuing refnsal to provide the Audit Report to the State of New York is irresponsible, especially since LILCO provided the Audit Report to the NRC Staff several months ago. For instance, in a September 29, 1986 letter to the State' of New York (Appendix E), LILCO attempted to rationalize its selective transmission of the Audit Report to the NRC Staff as follows: Because the report about which you have inquired involved Shoreham, we naturally shared the results with the

NRC, the agency responsible for reviewing nuclear operational and safety matters.

As a result of policy, LILCO does not normally provide information on internal reviews to outside groups. 2/ LILCO's proposal that certain representatives of the State of New York attend an oral presentation on the Audit Report (see Appendix F) is unacceptable. If LILCO is willing to make an oral presentation regarding the audit, then LILCO should be willing to release the underlying documentation which presumably will support the statements made during the oral presentation. Without the underlying documents, however, the State of New York has no basis to verify LILCO's assertions. 9

B Contrary to LILCO's contention, the State of New York is not an "outside group." The State of New York has a'right to receive documented information about Shoreham's safety since the plant is located in New York and a radiological accident i there could have many adverse impacts on New York's residents. That concern is justifiably heightened by LILCO's obstinance in refusing to produce the Audit

Report, LILCO's. record of i

. extensive mismanagement of Shoreham; and the State of New York's well founded lack of confidence in LILCO. Moreover, ordinary principles of litigation propriety and fair play establish the right of one party in an adversarial proceeding to secure in a. timely manner whatever materials other independent,- nonaligned parties transmit between themselves. If two independent, nonaligned parties privately share factual information, as LILCO and the NRC Staff have done with respect to the Audit Report, the proper remedy for the Commission-is to order that these two parties produce the relevant documents. The other parties can then study the facts and consider on an informed basis whatever action is appropriate. The Commission should apply this remedy here

because, as a party in interest in all of the Shoreham 4

licensing proceedings, the State of New York enjoys precisely the same party status as the NRC Staff. The State of New York, therefore, is entitled to the same materials LILCO gave to the NRC Staff and the Commission should order LILCO to produce the I Audit Report immediately. 10 --, - - - ~. --~. _-...,,

l I LILCO should also be compelled to immediately produce all documenta related to the Audit Report. Audit findings are significant because they usually require carrective actions. Audit observations are 'significant hoo because they usually suggest ways of developing and implementing improvements.

Indeed, after noting that the Audit Report contained 35 findings and 19 observations, NRC Inspection Report No.

4 50-322/86-10, at page 12, stated: As a result of these findings, the audit report recommended further management attention be applied in the training and qualification area to assure timely resolution of these audit findings and observations.~ Thus, the Audit Report cannot be reviewed in isolation. It is essential that the Audit Report be analyzed in conjunction with LILCO's follow-up efforts.. The State of New York, therefore, is entitled to review all documents which show whether and to what extent LILCO has " applied further management attention" to the problems described in the Audit

Report, and whether and to what extent that attention has resulted in " timely resolution" and correction of the audit l

findings and observations. Accordingly, the Commission should order LILCO to immediately produce all documents created by or J for LILCO after the audit which relate to the analysis or resolution of the 35 findings and 19 observations noted in the Audit Report.. i l l l^ 11

II. THE NRC STAFF SHOULD BE DIRECTED TO IMMEDIATELY - PRODUCE THE AUDIT REPORT AND ALL RELATED DOCUMENTS A. The NRC Staff's Failure To Retain A Copy Of The Audit Report Is A Violation Of The Federal Records Disposal Act And Must Be Remedied Promptly. The NRC Staff's action in returning the Audit Report to LILCO without retaining a copy (see Appendix G) violated the Federal Records Disposal Ac't, 44 USCA S3301 et seq. This Act provides the exclusive means for disposal of federal records. 44 USCA S3314. Records are defined as: [.Al ll books, papers or other documentary material made or received by 'an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency as evidence of the organization, functions,

policies, decisions, procedures, operations or other activities of the Government or because of the informational data in them

[44 USCA S3301] (Emphasis Added). Under this statutory scheme, each federal agency must compile lists of records which it wishes to dispose of and submit those lists to the Archivist of the United States.3/ 44 USCA S3303. The Archivist must then examine the lists. If the records meet certain criteria, and after the Archivist follows certain procedures, the Archivist may " empower the agency to dispose of those records." 44 USCA S3303a. 3/ The implementing regulations further emphasize the Archivist's exclusive authority: "No records of the Government shall be destroyed or otherwise alienated from the Government except in accordance with 44 USC 3314." l l 12 L

4 The Audit Report clearly is a " record" within the preview of the Federal Records Disposal Act since the NRC Staff received that document from LILCO. (Public Records Disposal Act, 44 USCA S3301) Indeed, such audit reports are mandated by the NRC's Regulations and are an integral part of the licensing process. The need for and purpose of quality assurance audits in ~ the NRC's licensing process is highlighted by Section XVIII of Appendix B of 10 CFR Part 50. That section provides: A comprehensive system of planned audits shall be carried out to verify compliance with all aspects of the quality assurance program and to determine the effectiveness of the program Audit results shall be documented and reviewed by management having responsibility in the area audited. Follow-up action, including reaudit of deficient

areas, shall be taken where indicated.

(Emphasis Added) Section XVII also is relevant. It provides: Sufficient records shall be maintained to furnish evidence of activities affecting quality, the records shall include at least the following: Operating logs and the results of reviews, inspections, tests, audits, monitoring of work performance, and materials analyses Records shall be identifiable and retrievable (Emphasis Added) Further, Section I provides: The quality assurance functions are those of: (a) assuring that an appropriate quality assurance program is established and effectively executed, and (b) verifying, such by checking, auditing, and inspection that as activities affecting the safety related functions have been correctly performed. (Emphasis Added) 13

The information concerning quality assurance specified in these regulations must be included in the Preliminary ' Safety Analysis Report (PSAR) and the Final Safety Analysis Report (FSAR), pursuant to CFR 550.34 (a) (7) and (b) (6) (ii). Since the PSAR and FSAR are mandatory elements. of applications for a construction permit and an operating license, respectively, audit reports are records " received in connection with the transaction of public business irrd appropriate for preservation." (Public Records Disposal Act, 44 USCA S3301) This basic fact is not affected by the NRC Staff's action of returning the Audit Report to LILCO. Once the Audit Report was received by the NRC Staff, it became part of the NRC's records. As such, it was exclusively within the Archivist's control pursuant to the Public Records Disposal Act and could not be disposed of without authorization by the Archivist. The NRC Staff, however, apparently did not comply with the statute. There is no indication that the NRC Staff placed the Audit Report on the list contemplated by the statute. Nor is there any evidence that the Archivist authorized the NRC Staff to dispose of the Audit Report by returning it to LILCO. Under these circumstances, the Commission is required by the Federal Records Act, 44 USCA S2901 et seq., to initiate appropriate action to regain possession of the Audit Report. The Federal Records Act provides: .14

The head of each Federal Agency shall notify the Archivist of any

actual, impending or threatened unlawful

removal, defacing, alteration or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency...

[44 USCA S3106] (Emphasis Added) In this case, the Audit Report has been in the possession of the NRC Staff but has been unlawfully without authorization by the Archivist. The Commission is, therefore, obligated by the Federal. Records Act to recover the Audit Report from LILCO. In this way, the Audit Report can~ rightfully be placed in the. NRC Public Document Room (like NRC Inspection Report No. 50-322/86-10) and made available to parties in this proceeding and the public in general. The Commission clearly cannot cite the NRC Staff's failure to retain the Audit Report as justification for failing to provide it to the State of New York. B. The Freedom of Information Act Requires That The-Audit Report Be Provided To The State Of New York The Freedom of Information Act, SUSCA S552, requires that i the records of Federal government agencies be made available upon request, except in the case of certain narrowly construed exemptions which clearly do not apply here. It is obvious that the NRC would be obligated to provide the Audit Report if that l 15 l

document were still in its physical possession. The same result must apply in this

instance, notwithstanding the subsequent return of the Audit Report to LILCO.

In light of~its actions, the NRC Staff must be deemed to have constructive possession of the Audit Report. The NRC Staff took possession of the Audit Report, reviewed it and discussed its findings in Inspection Report No. 50-332/86-10. As such, the Audit Report is an integral" part of the NRC's records in the Shoreham licensing proceedings. The NRC has the general authority to require LILCO to produce any documents concerning the Shoreham quality assurance including the Audit Report.

Moreover, the NRC has an affirmative obligation under the Federal Records Act to reclaim the document from LILCO.

(See Point II-A supra) Thus, the physical return of the Audit Report to LILCO cannot relieve the NRC of its obligation under the Freedom of Information Act to provide the Audit Report to the State of New York. If it. were otherwise, the explicit language and overriding policy of the Freedom of Information Act could be frustrated simply by disposing of records concerning potentially controversial matters. Such a result clearly would be untenable. Accordingly, the Audit Report should promptly be provided to the State of New York pursuant to the Freedom of Information Act. 4_/ See e.g., 10 CFR, Appendix B, SS I, XVII, XVIII. 16

C. The NRC's Regulations Require That The Audit Report Be Made Available For Copying In The NRC Public Document Room. 10 CFR S 2.790 (a) sets forth rules for the availability of NRC records. This section provides that certain NRC records and documents shall be disclosed and shall be made available for inspection and copying in the NRC Public Document Room, with certain qualifications', none of which apply to the Audit Report. The NRC Staff is familiar with this requirement because it placed NRC Inspection Report No. 50-322/86-10, which discusses the Audit

Report, in the Public Document Room pursuant to this provision.

~ The Audit Report falls within the scope of this regulation because it is " correspondence to the NRC regarding the issuance, denial, amendment, transfer, renewal, modification, suspension, rev'ocation, or violation of a license, permit or order." As explained in Point II-A supra, LILCO prepared the Audit Report and the NRC Staff reviewed it as part of the licensing process established under 10 CFR 550.34. The NRC Staff violated 10 CFR S 2.790(a) by not treating the Audit Report as a public record, not placing it in the NRC Public Document

Room, and simply giving it back to LILCO.

The Commission should take immediate action to rectify this error and recall the Audit Report. l 17

D. The NRC Staff's Failure to Comply With Applicable Laws' Requires A Full Explanation And Accounting. NRC regulations impose a duty on the NRC Staff, as well as the Commission, to conduct the affairs of the NRC in an ethical manner. In this regard, 10 CFR S0.735-30(o) prohibits the concealment, removal or destruction of public records. Further, Section 0.735.49a prohibits conduct which might result in, or create the appearance of, giving preferential treatment, impeding government efficiency, losing complete independence or impartiality, and affecting adversely the confidence of the public in the integrity of the NRC. In addition, Annex A of 10 CFR Part O, entitled Code of Ethics for Government Service, states, among other things, that special favors or privileges should not be given and corruption should be exposed wherever discovered. ' The NRC's actions with regard ~to the Audit Report appear to be inconsistent with these regulations. The fact that the NRC Staff returned the Audit Report to LILCO without retaining a copy (see Appendix G) raises a number of basic questions, especially since the NRC Staff reviewed the Audit Report and relied upon it to support the evaluations set forth in NRC Inspection Report No. 50-322/86-10. First, why was the Audit Report returned to LILCO and not included in the public record? It is anomalous that such an 18

.I important document would not be in the public record and would not even be in the NRC Staff's possession. Second, what are the NRC Staff's procedures in regard to documents received from licensees and applicants? Are those procedures written or informal? (If there are written procedures, they should be provided.)

Third, were the established procedures followed with

^ respect to the Audit Report? If they were not, what was the reason?

Fourth, have there been any other instances in which documents received from LILCO were' returned?

If so, what were the circumstances and the reasons for such action? Fifth, to what extent did the NRC Staff utilize the Audit Report? Did the NRC Staff prepare notes regarding the Audit Report? Did the NRC-Staff utilize the Audit Report in evaluating LILCO's subsequent performance? Any notes or other NRC Staff' records concerning the Audit Report should be provided. The State of New York requests that the Commission direct the NRC Staff to respond fully to each of these questions and provide the information requested therein. It is imperative that those responses be given promptly. l 19

E. The NRC Staff Should Be Required To Immediately Produce All Documents Related To The Audit Report. As discussed in Points I supra, it is essential that the State of New York be provided with all documents related to the Audit Report, as well as the Audit Report itself. This necessarily includes relevant documents prepared by and'for the NRC Staff, since that ' entity relied on the Audit Report to formulate the pertinent evaluations set forth at page 12 of the Inspection Report No. 50-322/86-10 and is responsible for reviewing LILCO's follow-up efforts regarding the problems highlighted in the Audit Report.

Indeed, the Audit Report presumably would be used as a baseline to evaluate future LILCO performance.

Accordingly, the Commission should direct the NRC Staff to promptly' provide all such documents to the State of New York. k-l l 20

III. THE MATTERS RAISED IN THIS MOTION SHOULD BE CONSIDERED EXPEDITIOUSLY The matters raised-in this motion involve very important questions about the safety of Shoreham. The unusually high number-of observations and findings noted in the Audit Report bear this out. LILCO's refusal to produce the document underscores the State of New York's concern that the Audit Report reflects significant deficiencies in the safety of Shoreham. Moreover, the NRC Staff's action in returning the Audit Rotort to LILCO appears irregular and, ~t a minimum, a requires a full explanation. Both LILCO and the NRC Staff are familiar with the specific issues raised by this motion. Almost two months have elapsed since the CPB asked LILCO for the Audit Report, and one month since counsel representing Governor Cuomo and the State of 'New York reiterated that request. The NRC Staff has been cognizant of the State of New York's request for the Audit Report for much longer -- since early July. Hardship will not accrue to either LILCO or the NRC Staff since both parties have had ample time to gather the relevant documents and to formulate positions. Accordingly, the State of New York requests that the matters raised in this motion be considered on an expedited

basis, with the period for answers set forth in 10 CFR 21

52.730(c) (1986) reduced for all interested. parties, including LILCO and'the NRC Staff, to seven days from the date of service of this motion, or Monday, October 20, 1986. 4 e es I 4 l 4 4 I i 22 i 1 .. ~

CONCLUSION The Commission should not allow, LILCO's irresponsible actions to interfere with the right of the people of the State of New York to be informed of conditions within a resident ~ nuclear power plant. The Audit' Report and related documents should be available to the State of New

York, but, unfortunately, they currently are not.

Accordingly, the Commission should issue an order compelling LILCO to immediately produce the Audit Report and all documents created by or for LILCO after the audit which relate to the analysis or resolution of the 35 findings and 19 observations noted therein. - In addition, the Commission should direct the NRC Staff to immediately produce the Audit "eport. and all documents'in its possession per+.aining thereto, as well as to the analysis or resolution of the 35 findings and 19 observations. The NRC Staff should also be directed to explain fully why the Audit ( Report was returned to LILCO and not included in the public files, and to provide a list of any other Shoreham-related documents that were treated similarly. l l 23 l w --+m--. y + w _--.-,mr, -y. --y.-.-,7p,p,w9 .--y---r- + _ - - - - - -

Since these matters raise serious questions about the competency of LILCO as a low-power licensee and full power license applicant, and the integrity of NRC Staff as an overseer of LILCO's management of Shoreham, this motion should be granted on.an expedited basis. Respectfully submitted, 4

• O

( 4 Fabian G. Palomino Richard J. Zahnleuter Special Counsel.to the Governor of the State of New York Executive Chamber Capitol, Room 229 Albany, NY 12224 Attorneys for Governor Mario M. Cuomo and the State of New York 9% 9 24

^ APPENDIX A lc A 0:4' - ) MS sT4re or new voax [ ;, L $'. a ~ EXECUTNE DEPARTMENT (' .i 3 STATE CONSUMER PROTECTION BOARD j .,...:.s... RICHARD M. KESSEL I ' ' N,,, /LY TO: - ~.... 'SS WASHINGTON AVENUE f. o REPLY TO- ? Ataun.New voan mio (350 BAOADWEY.1EFL August 7, 1986 --- ' waw voax.New voax im me mm<

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$p!.fifff. William J. Catacosinos

.? ? " J:' ' Chairman an.d Chief Executive Officer --J - M> P ' g _ Long Island Lighting Company ."2- ,,]@M 175 East Old Country Road Hicksville, NY 11801 $i* .,2,

Dear Chairman Catacosinos:

.3 a / The June 1986 Nuclear Regulatory Commission Inspection._ Report for Shoreham indicated 'that the Long Island Lighting Company has conducted an audit of the training and.- - qualifications of personnel working at the Shoreham nuclear Power plant. This audit report, conducted by the.LILCO Nuclear-~ ~ -' Review Board (LILCO QA), included 35 findings -and 19 ~ ~ observations. To date, this audit has not been provided~to New York State. I would hereby request that LILCO provide t'he Consumer Protection Board with a full copy of this audit so that its findings and observations can be analyzed._. Now that the Shoreham nuclear power plant is undergoing low powcr testing, '.o u .A;. it is imperative that all fa~ cts relevant to the training and".'.. ~_ or qualifications of Shoreham personnel be fully scrutinized. t -'~;i. N { I appreciate your cooperation and looic ' forward to receiving - a copy of this report. Sincerely, ., 4..~ njg Richard M. Kessel l 1 cc: Lando Zech, Chairman Nuclear Regulatory Commission l \\ E lII J ,,, [, ,,..,,e ~ I#*O I

l APPENDIX B v, I /EgI LONG ISLAND LIGHTING COMPANY. EXECUTIVE OFFICES: 175 EAST CLD COUNTRY ROAD e HICKSVILLE. NEW YORK 11801 --,-:.~ s;- wmudM.[cATAcSswos ~ $0I30$g N TECTIg u e -.~.~oc oecurn,co,m o. AD.B A N Y, n,~ y, ..gr 5.4;:.p%., R[fgsg y '5 ;236'~' _ ~ .,..t....:.'", '. August 21, 1986 ~ i.t -;?6 .,g .. y -y J. 7 d.6,.;'?y$ ~ .:4. ~ 'T ^ 'e 'i.,'h(i'.' Mr. Richard M. Kessel Chair and Executive Director 3'f, State Consumer Protection Board d,W 99 Washington Avenue ,V. Albany, NY,_12210 P

Dear Mr. Kessel:

As your Xugust 7th letter reflects, the Nuclear Regulatory Commission has been actively reviewing the training and qualification of personnel working at Shoreham as pa~ t of -- r their statutory responsibility for the regulation of nuclear power plants. We believe the Nuclear Regclatory Commission is ~ " - - fully capable of assessing the adequacy of LILCO's programs in ~ this area and that a review by the Consumer Protection Board ~ would not be necessary. As you know, LILCO has and will continue to cooperate fully with the State Consumer Protection Board in those areas which fall within its purview. Sincerely, e k. & ~ n, '2 g WJC/dh e ,p. G 0 Y .O e e e ?

APPENDIX C Sheet 1 of 3 STATE OF Ncw YORK ~* ExecuTivr CHAMBrR AteANY 12224 September 18, 1986 t- ,9 y Telecop'ler .w. egg cTt[T'O' Donald P. Irwin, Esq. Bunton & Williams 7.[8 P.O. Box 1535 Richmond, Virginia 23212 . f. [

Dear Don:

Under cover of a letter, dated June 25, 1986, Region I of the NRC transmitted Inspection Report No. 50-322/86-10 to my office and interested members of the public. The report covers j the period between April 16, 1986 and May 31, 1986. The following salient statement appears on page 12: i [T]he QA^ Division Manager moved up scheduled Nuclear Review Board Training Audit and QA Training Audits to April from their originally scheduled dates. } The Training and Qualifications audit was conducted by a twelve man audit team that expended over 1,000 man hours in audit preparation and conduct. The ?. audit indicated prcper qualification of personnel 4 with no problems similar to the qualification deficiencies identified in the radiochemsitry [ sic] i. area. (See Inspection Report 86-03 for further j details). However, thg audit reoort did result in M -y Audit findings and H observations scanning All areas fron orocram/orocedur,g development throuah record keeoina. As a result of these findings the audit report recommended further management attention be applied in the training and qualification area ,to assure timely resolutien of these audit findings and observations. [ Emphasis added] In furtherance of our telephone conversation on the morning ~ of September 18, 1986, I hereby request that the State of New

(

York receive in hand a copy of the audit report referred to in j the NRC Inspection Report immediately, but in no event later than i .? ' J. ---n .,.,,.,,---n

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APPENDIX C Sheet 2 of 3 1 ' the close of business on Monday, September 22, 1986. In addition, please provide in hand before the close of business on' Thursday, September 25, 1986 a copy of all documents created by or for LILCO after the audit report which relate to the analysis ..nand resolution of the 35 audit findings and 19 audit ' observations. ec " As you are aware, the State Consumer Protection Board Dr ' requested this same information from LILCO in a letter, dated ', )l.? August 7, 1986. However, in a letter, dated August 21, 1986, Mr. d#- Catacosinos responded, "We believe the Nuclear Regulatory "@;Cf' Commission is fully capable of assessing the adequacy of LILCO's q'E'js programs in the area and that a review by the Consumer Protection Board would not be necessary." Mr."-Catacosinos also pledged to cooperate fully with the State Consumer Protection Board "in those areas which fall within its purview." l The State of New York has a right to be informed of conditions, both positive and negative, within all of its resident power plants. Shoreham is no exception. 35 audit observations and 19 audit findings are unusually high numbers, particularly since LILCO's performance in the radiochemistry area supposedly has improved since March 1986. The mere fact that LILCO has resisted disclosing documents which it already has ^ submitted to the NRC suggests to us that LILCO is concealing something of importance and increases the intensity of our need to obtain the documents promptly. Moreover, as a party in interest'in the NRC proceedings regarding Shoreham, the State of New York has a right to secure in a timely manner f rom LILCO any materials that LILCO provides.to the NRC Staff, another party to the Shoreham proceedings. Your suggestion to the effect that the State of New York should agree to withhold the audit report and related documents from the State Consumer Protection Board as a condition to receiving such materials is untenable. The government of the State of New York represents the interests of all its citizens, including consumers. We will not agree to withhold information concerning Shoreham from the State Consumer Protection Board. Further, we are not willing to accept an oral presentation ' concerning the audit report and related documents or an inspection of these materials by representatives of the State of New York in lieu of actual production. 9 l t i 9

~ -APPENDIX C Sheet 3 of 3 9 In view of these considerations, I ask that LILCO reconsider its position and release its audit report and related documents in compliance with the terms of this request. Ver truly ours $0 / da4D ~ Richard euter 3.-; f ,.p Deputy Special Counsel ... J/0 to the Governor 4 . i ki q.y

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APPENDIX D HUNTON & WILLIAMS 707 EAs7 MAIN STREET P.O. Box 6535 aooo PEnnsvLvamin wtwut. m.W. . Escaxown, V2moIw2A 23212 soo na== avCwut P. o. som seaso NEW VoRM. NEW YoRR toot? Wasnewovow, o. c. aoose TELErwont ria sos-sooo TELErno=E aca-ess ssoo TE LE PHO N E 804*788-8200 TELEm 4a4s4e eeuMT ue nnot vimosmaa sawn TowEm TELEX 6844251 P. o. mon some owe MawwovEn souAnt nomrota, vinosusa assa4 P.o. mon som TELEPuonE soe eas ssos mALEseM. NomTM cAmouMA a7eoa TELEPMont one eee 3ooo September 23, 1986 sono cMasu enet.at mono ,,,,s,,C,,,,E,,EE,,,,,,,,,,,,,,,

p. o. som n47 P.o. non ese FAARrAM. V,fDG5N84 amo3o MMoxvsLLE. TENNE ssEE 37 eof TELEPMoME Fo3+3sa aaoo TELEPMoNE ees e37 43 s nLE No o..Ec7 o..L o..o.7...

Richard J. Zahnleuter, Esq. Deputy Special Counsel to the Governor BY TELECOPIER State of New York Executive Chamber Albany, New York 12224

Dear Rick:

LILCO is currently reviewing your letter of the 18th. I will be back to you with a substantive response as soon as possible. Sincerely yours, Donald P. Irwin 91/730 S 8 O e O

w. vv APP NDIX a Sheet 1e p 7o? E'.AsT MAIN sTMEET P.O. Box 1535 [ - ;810p HuxTow & WII.I.IAus .000 mc-oo. vmom om p.o..oae.eso .co.... _... vsLt.Homt a0s.. 003. msw venu. maw voam.oos, wn.usworom. o.s. 2 TELt Homerie.So..sooo + -8 00 TEbEs*MONE 804 733 3200 tatsn ame numy us ,ta.tw e%s..anntowa= TELEM 6544256

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p.o. mons 'n.Lseem.NonT>ec.A v.u,,,0.. .o.no. ouma e?. .... e--. o,. oc September 29, 1986 ,,.., m,,,,, o o . c. .. e.... .,.v... o w u n c. u u., .,.0. v.6. o.>o.... 30 nu............ ...o o ,16e No V,' ' ..ascr. 6 ao..o. n. 8 3 5 7 -) y Richard J. Zahnleuter, Esq. y' . Deputy Special Counsel to the Governor State of New York By Telecopier ~ f. / Executive Chamber i / Albany, New York 12224 LILCO QA Audit Dear Ricks On Friday, September 26, LILCO made a public statement con-cerning the LILCO Quality Assurance audit that was the subject of your September 18 letter. The Company noted that as a matter of policy, LILCO's organization includes quality assurance and auditing teams which regularly conduct reviews and evaluations of personnel, procedures and operations. LILCO insists on.having a highly skilled and well-trained work force and constantly strives to improve the Company's performance. The internal quality assurance and auditing reviews, such as the audit of training ~ activities requested by your letter, are part of LILCO's ongoing effort to achieve self-imposed high standards of excellence. Because the report about which you have inquired involved Shoreham,'we naturally shared the results with the NRC, the agency responsible for reviewing nuclear operatio. sal and safety matters. e e a

~ w.i rr ~,.,ww,. ....wi j .w .w e APPENDIX I' .. '! g' HUNTON & WII,IIAMS Sheet 2ofI Richard J. Zahnleuter, Esq. september 29, 1986 Page 2 4 3 As a matter of policy, LILCO does not normally provide information on internal reviews to outside groups. But since New York State has expressed an interest in this particular report, the Company announced on Friday that it would.be happy to meet with state repter,entatives to review the findings of the audit- ^ e. team. We think the meeting wou.1d be most productive if state employees actively involved with other operating nuclear power plants in New York State are in attendan~ce..Please let.me know at your earliest convenience who will participate in the review for the state so we can arrange a mutually convenient time. ~~ ~ Sincerely yours, Donald P. Irwin 91/730 e 4 Y . e m,.r-----v,----,--,--,---m-- e n,_

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APPENDIX F e 4 W.$b STATE OF NEW YORK Exccutive CHAMBER FABIAN PALOMINO Special Couneet to the Governor September 30, 1986 By Telecopier Donald P. Irwin, Esq. Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212

Dear Don:

This is in response to your letter to me of September 29, 1986. Unfortunately, your letter misses the point. The State of New York simply wants a copy of the same radiochemistry training and qualifications audit report which LILCO selectively provided to the NRC Staff, another party in the shoreham licensing proceedings, several months ago. We are not interested in listening to an oral _ presentation by LILCO in lieu of immediately receiving a copy of the actual, relevant documents. If I do not receive these documents in hand by 2:00 p.m. on October 1,1986, the State of New York will ask the Commission to compel LILCO to produce the requested documents forthwith. ~ Ver ruly yours /l (? II &y / 5 %DQ ) y ' Richard J[J ah euter Deputy.Special Counsel to the Governor O L

APPENDIX G .e s j .m,;w, e .o;ww.=2,5gpym LILCO~ tate lash 1 ' 9 4,9 y w =w-ton >. jRevi udit1 .ByJohnlicDoriald1, N ',,.. ~ An audit commissioned ng faland Likht?" i ing Co. to review the tratning ofemployees at the ? . Shoreham tuelear power plant-bas become the - t 1 focus of the latest battle between'the ' utility'and New York State. N ~..Lastweek,LILCOofferedte ow' state offi~ to " review the findings"of the siidit but" ' short ofsaying they could have~a' copy ofit. O* had provided a copy of the audit to the Nuclear i Regulatory Commi== ion, but an NRC official said ' he returned it to the utility after reviewing itr. . In a letter to LIIf0 y,-Richard J i ~ Lhdeuter, deputy counsel to Gov. Mario '. Cuomo;said of the conditions the utility offered,

• We are not interested in listening to an oral pre-mentation by LILCO in lieu ofimmediately rep.

ceiving a copy of the actual, relevaqt ef=== ants."4g Lhnleuter warned that,"IfIdo not receive these :.a l documents in hand b 2 p.m. on Octo 1,1986,'i:1 k theStateofNewYor willaskthe ear Reg 1 M ulatory] Commiazion to compel LILCO to produce -7.[ the requested documents." 3.*rMe.M-N.&t.% In a report on a routine inspection of Shore-7" ham, NRC officials said in June that the audit ? } resulted in "35 findings and 19 observations,".? - terms frequently used in audits to note criticism.' LILCO has maintained that the audit-done by - - LILCO and a consultant early this year--Jis art.-[1 ' of the company's ongoing review of stantia at I

• the lant and that the state has no right to it. v,$.,'p:

'. J Berry, the regulatory commission's senfoi, resident inspector at Shoreham, said that the au-i. T dit found problems with documentation oftrai nin g4 and was generally critical of LILCO's training - r ' j program for Shoreham employees. He added that

• C the audit essentially confirmed the findings of the -b NRC's annual evaluation ofShoreham,which said the training program needed improvement. Berry said it was a bulky document and that he saw no.;,-

need to keep it, so ho gave it back to LILCO....' . Richard Kessel; executive director of the State Consumer Protection Board, said. "This incident 6 I raises a major question about LILCO's ability to run a nuclear power plant. If LILCO is willing to ! withold from the public a document about train. .S ing of people working at the plant, one wonders to ~~ what length LILCO would go to hide an accident at the plant." ..I LILCO spokeswoman Lynne Abraham said of " the audit,"We knew we would find problems; we - found problems and we have been working on those problems for the last six months."She added that LILCO is willing to review the audit findings with state officials. "We don't understand their reluctance to come and talk with us," she said.

6 COEKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION 86 (ET 16 P2:57 Before.t;he Commission 0FFKE 0i 3:O't : A"Y DOCKEliNti h SEFVICI. ) BRANCil In the Matter of ) i' ) LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 0 )

• (

(Shoreham Nuclear Power Station, ) October 13, 1986 Unit 1)- ) ) ) l? Certificate gf Service I hereby certify that copies of " MOTION OF GOVERNDR MARIO M. CUOMO, REPRESENTING THE STATE OF NEW YORK, TO COMPEL PRODUCTION OF AN AUDIT REPORT ON SHOREHAM PERSONNEL AND MOTION FOR EXPEDITED CONSIDERATION" have been served this date upon the following by Federal Express as indicated by one asterisk, or by first-class mail, postage prepaid. I

• Lando.W. sech, Jr., Chairman
• William C. Parler, Esq.

U.S. Nuclear Regulatory General Counsel ~ Commission U.S. Nuclear Regulatory Room 1113 Commission 1717 H Street, N.W. 10th Floor Washington, D.C. 20555 1717 H Street, N.W. Washington, D.C. 20555

• James K. Asselstine
• Comm. Frederick M. Bernthal Commissioner U.S. Nuclear Regulatory U.S. Nuclaar Regulatory Commission Commisrion Room 1156 Room 1136 1717 H Street, N.W.

1717 n Street, N.W. Washington, D.C. 20555 Washinton, D.C. 20555 I l l' I ? o ).

4 .

• Bernard M. Bordernick, Esq.
• Comm. Thomas M. Roberts U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 7735 Old Georgetown Road Room 1103 8th Floor, Room 8704 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555

• Comm. Kenneth M. Carr Stuart Diamond U.S. Nuclear Regulatory Business / Financial Commission NEW YORK TIMES 1717 H Street, N.W.

229 W. 43rd Street Washington, D.C. 20555 New York, NY 10036 Jonathan Feinberg Stewart M. Glass, Esq. New York Public Service Comm. Regional Counsel The Governor Nelson A. Federal Emergency Management Rockefeller Building Agency Empire State Plaza 26 Federal Plaza Albany, NY 12223 New York, NY 10278 Mr. William Rogers Anthony F. Earley, Esq. Clerk General Counsel Suffolk County Legislature Long Island Lighting Company Suffolk County Legislature 250 Old Country Road Office Building Mineola, NY 11501 Veterans Memorial Highway Hauppauge, NY 11788 Spence Perry, Esq.

• W. Taylor Reveley, III, Esq.

Associate General Counsel Hunton & Williams Federal Emergency Management P.O. Box 1535 Agency 707 East Main Street Washington, D.C. 20471 Richmond, VA 23212 Mr. L. F. Britt Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office Shoreham Nuclear Power Station Agency Building 2 North Country Road Empire State Plaza Wading River, NY 11792 Albany, NY 12223 Ms. Nora Bredes

• Stephen B. Latham, Esq.

Executive Director Twomey, Latham & Shea Shoreham Opponents coalition 33 West Second Street 195 East Main Street Riverhead, NY 11901 Smithtown, NY 11787 4

. Docketing and Service Section Mary Gundrum, Esq. Office of the Secretary New York State Department U.S. Nuclear Regulatory of Law Commission 2 World Trade Center 1717 H Street, N.W. Room 4614 Washington, D.C. 20555 New York, NY 10047 Hon. Peter Cohalan MHB Technical Associates Suffolk County Executive 1723 Hamilton Avenue H. Lee Dennison Building Suite K Veterans Memorial Highway San Jose, CA 95125 Hauppauge, NY 11788 Dr. Monroe Schneider Martin Bradley Ashare, Esq. North Shore Committee suffolk County Attorney P.O. Box 231 Bldg. 158 North County Complex Wading River, NY 11792 Veterans Memorial Highway Hauppauge, NY 11788 David A. Brownlee, Esq.

• Lawrence Coe Lanpher, Esq.

Kirkpatrick & Lockhart Kirkpatrick & Lockhart 1500 Oliver Building 1900 M Street, N.W. Pittsburgh, PA 15222 Suite 800 Washington, D.C. 20036 ~ Joel Blau, Esq. State Consumer Protection Board 99 Washington Avenue Albany, NY 12210 3 f / / / t.'g d 1 Richard J/"ial Counsel W leuter Deputy Spec to the Governor Room 229, Executive Chamber State Capitol Albany, NY 12224 Date: October 13, 1986 i + i.i l i i ,i !!l i l .}}