ML19347D916
| ML19347D916 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/02/1981 |
| From: | Earley A HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104140465 | |
| Download: ML19347D916 (18) | |
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April 2, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of -)
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 / [Nr N'%\
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Applicant's Response to SOC's Motion for Acceptance of Contention 19 3 'N7 N ,e x . ,' ;
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On March 18, 1981, SOC moved that the Board accept SOC contention 19 as adequately particularized for adjudication in the Shoreham operating license proceeding. As explained
. p, by SOC, its representatives have met with representatives dfi the NRC Staff and the Applicant to informally discuss the narrowing and particularization of contention 19. SOC correctly stated that the parties agree that the contention language accompanying SOC's motion is stated with sufficient -
particularity for litigation purposes. Also correct was the representation that there is substantial disagreement over the allowable scope of contention 19. For the reasons set out below, the Applicant believes that contention 19 is, in large part, inadmissible.
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1 II.
SOC's motion contained a brief account of the history of contention 19. Unfortunately, the description failed to note important facts about SOC's intervention 1 caring directly on the admissibility of contention 19. At the risk' of being repetitive, a full explanation of the contention's background is necessary.
On January 24, 1980, SOC filed a petition for intervention in the Shoreham operating license proceeding 45 months latell and almost ten months after the accident at Three Mile Island, Unit 2. As required by the NRC's regulations, this Board weighed SOC's untimely application under the criteria set out in 10 CFR S 2. 714 (a) (1) . See Board Order of March 5, 1980, at 4-12. Despite the Applicant's objections, see " Applicant's Opposition to SOC's . Intervention " dated February 8, 1980, at 3-25, the Board found that (1) good cause for inter-vention existed only with respect to TMI related issues and issues related to alleged construction defects, and (2) a balancing of all of the factors to be considered weighed in ~
favor of SOC's intervention. See Board Order of March 5, 1980, at 5-12. But the Board did not allow unrestricted intervention.
The lateness of SOC's petition and the potential delay it might cause led the Board to limit SOC's direct participation to 1/ The time for intervention ran on April 19, 1976. See 41 Fed. Reg. 11,367 (1976).
new issues relating to the accident at TMI or to recently discovered construction defects. Contentions which duplicate those of existing parties or otherwise replow old ground, or which relate to matters that properly could have been raised at the onset of this proceeding will be denied.
Ig. at 12 (footnote omitted).
After concluding that SOC could only litigate contentions related to recent developments,z'/the Board then applied the principle to each individual contention. The Board had this to say about contention 19:
(I]t would be appropriate for the Board to consider whether the standards and goals of recent Regulatory Guides have been met. Soc must, however, specify which recent Regulatory Guides it believes have not been met, and why it believes they should be met.
Id. at 22 (emphasis added).
As indicated by SOC, the parties proceeded to have a 4
number of meetings over several months to work out an acceptable contention. Those meetings did succeed in reducing the number of regulatory guides in dispute but it became clear that _
agreement could not be reached on the scope of the contention 2/ As indicated in the quote above, only two issues --
TMI-2 and construction deficiencies -- were cited in the Board's initial discussion as sufficient to support contentions. Further on in the order, however, several other recent developments served as the basis for contentions. For example, contention 15 was admitted on the strength of I&E Bulletin 79-26. Id. at 19.
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. l envisioned by the Board. The parties decided to set their differences aside, particularize a contention and then present it to the Board for resolution of the disputed issue.
It is with this background that SOC presents its motion' and argues that all of the regulatory guides listed in the new version of contention 19 come within the limitation imposed in the Board's order. The Applicant disagrees for the reasons stated below.
III.
A. The Board has already decided the issue.
This Board, in unambiguous language, gave SOC leave to particularize a contention concerning only "recent" regulatory guides. In its motion, SOC now suggests that by the use of "recent," the Board intended to adopt a scope identical to that suggested in the original contention 19. That is simply not the case.
SOC's original contention alleged (a) that TMI was ag- .
gravated by a failure to comply with some regulatory guides, (b) that Shoreham did not comply with recent regulatory guides and (c) that the failure of Shoreham to comply with all " presently applicable" regulatory guides endangers public health and
t safety. The Board chose to allow only a contention involving (b) . SOC now seeks to reargue the matter.1/ But as the Board made clear at the time of SOC's untimely intervention, a grossly out-of-time intervenor. may not litigate " matters that should have been raised long ago." Board Order of March 5, 1980, at 13; see also id. at 14, 15, 19 and 21.
Most of the regulatory guides cited in SOC's contention have been around for years. SOC's members could have intervened to deal with them long before January 24, 1980 had SOC wished to do so. As a result, the Board properly limited the scope
, of SOC's participation in the Shoreham OL case. And, while the
- Board's limitation was couched in terms of a discretionary exercise of authority, see id. at 12, LILCO believes it was required by 5 2.714. It would defeat the purpose of limiting late intervention if parties admitted on the basis of one recent development, once cdmitted, could raise contentions on any other conceivable issue. In our view, SOC seeks to circum-vent not only this Board's restrictions but also the NRC's rules on late intervencion. The attempt lacks justification. Conten- .
tion 19 should be limited to precisely what this Board allowed a year ago -- a contention involving recent regulatory guides.
1I This is not the first time SOC has asked the Board to reconsider the limitations set out in its order. SOC petitioned for reinstatement of the contentions dismissed by the Board because, among other things, it obj ected to limiting contentions to those related to recent developments. See " Response of Shoreham Opponents Coalition (SOC) to Board Urder Dated March 5, 1980," dated April 3, 1980, at 13. The Board rejected the j argument and reaffirmed the limitations in the order. See Board Memorandum and Order of May 1, 1980, at 6-8. l l
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B. Vague reliance on Three Mile Island is inadequate.
To the extent that SOC seeks to rest the admission of contention 19 on TMI, its motion is also deficient. The accident at TMI is not a talisman that can be used to avoid the Commission's regulations regarding late intervention. The Board's careful scrutiny in its March 5, 1980 order of the existence of a substantial relationship between SOC's proposed contentions and the accident at IMI showed an acute awareness of this fact. That same level of scrutiny is appropriate now in reviewing this particularized version of contention 19.
s The parties have already recognized that, at least for the purpose of admitting contentions, there is a direct rela-
-tionship between TMI and some regulatory' guides. In the note on the first page of SOC's proposed contention 19, eleven regulatory guides (1.7, 1.26, 1.29, 1.52, 1.53, 1.98 and 1.109-1.113) are identified as being specifically related to TMI issues. The parties have agreed that these regulatory guides are more appropriately considered as part of SOC's TMI conten- _
tion.b' If there are others that were overlecked, contentien b/ The Board's March 5, 1980 order granted SOC leave to amend contention 7(a)(ii) so as to adequately particularize it.
This contention relates to generic issues raised as a result of the accident at Three Mile Island, Unit 2. By agreeing that issues concerning certain regulatory guides are more appropriately con-sidered as part of the TMI contention, the Applicant does not con-cede that a particularized contention on them would meet the Commission's guidance for litigating TMI issues. See "Further !
Commission Guidance for Power Reactor Operating Licenses: Revised Statement of Policy," CLI-80-42, NRC , 45 Fed. Reg. 85,236 (1980). Of course, if the Board were to decide that TMI provides a basis for considering all or part of contention 19, the standards for litigating TMI issues would have to be engaged now.
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7 (a) (ii) is certainly expansive enough to cover them without any express reservation of right.
The remaining regulatory guides, the thirty-six included in SOC's proposed contention, are alleged to have an indirect relationship to TMI. The TMI-2 accident, SOC crgues, was com-plicated because of failure to comply with some regulatory guides, therefore all regulatory guides [regardless of whether they were implicated by TMI) must be met in order to ensure safety. SOC did not offer any substantial explanation for this logic in its petition for intervention nor does it do so now.
Whatever relationship exists, if any, is far too tenuous to support the admission of such a wide ranging contention. And, in fact, that is precisely what this Board recognized when it limited contention 19 to recent regulatory guides.
SOC's appeal for a broad interpretation of the contention based on Kemeny and Rogovin is similarly misdirected. The Com-mission has deliberated at immense length about Three Mile Island, what it means and what should be done. The "NRC Action Plan' Developed as a Result of the TMI-2 Accident," NUREG-0660 (1980), along with the implementing instructions included in
" Clarification of TMI Action Plan Requirements," NUREG-0737 (1980), are the NRC's response to the TMI-2 accident.5_/
El SOC's emphasis on the need for "backficting" ignores the extensive requirements of NUREG-0737. Its Enclosures 1 (Post-TMI Requirements for Operating Reactors) and 2 (TMI Action Plan Requirements for Applicants for an Operating License) con-tain numerous examples of instances where utilities have been required to "backfit" modifications to their nuclear plants.
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Moreover, the Commission has provided guidance for the litigation of TMI-2 issues in individual licensing proceedings. See note 3 above. Therefore, it would be entirely inappropriate for this Board to read contention 19 as SOC would have it simply because SOC doesn't think the Commission has adequately factored TMI' into the licensing process. SOC will have an opportunity to make its arguments on that score once it has particularized its TMI contention. The attempt to have this contention admitted merely by waving the TMI flag without showing any substantial relationship to the accident should be rejected.
C. The Commission has recognized the need to expedite hearings.
Adherence to the March 5, 1980 Board order is necessary if Shoreham's operating license hearings are to be finished in a
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timely manner. LILCO is increasingly concerned that Shoreham, now 87 percent complete, will be physically ready to load fuel before its operating license proceeding is completed. There are still in excess of ninety contentions outstanding and SOC now proposes to add thirty-six more to the total. (Although numbered as a single contention, each part of contention 19 raises a dis-creet issue). Even taking SOC at its word that further pruning would occur, if all thirty-six parts of contention 19 were admitted, the burden on this proceeding would remain great.
We are not alone in our concern about protracted licensing hearings. Recent congressional inquiries into the NRC licensing
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process have shown that it has slowed to a glacial pace across l l
the board. The Commission has recognized the need to take action generically and has proposed amendments to the NRC's l Rules of Practice that would expedite the hearing process. 46 Fed. Reg. 17,216-18 (March 18, 1981). This Board can take a positive step toward streamlined, yet effective licensing hearings by applying the existing NRC Rules of Practice (i.e.
10 CFR $ 2.714) and the limitations already set out in this case.
Also relevant to a consideration of contention 19 is the role regulatory guides play in the NRC's licensing scheme. As recognized by this Board, as well as SOC, regulatory guides are
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not regulations; they are only guidelines.5/ In an effort to
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(a) give its engineers guidance on conducting safety reviews and (b) give applicants some degree of certainty in the licensing process, the NRC Staff has developed detailed regulatory guides to show at least one way to comply with the Commission's regula-tions. If the regulatory guide is followed, the applicant 5/ The legend appearing on the face of every regulatory ~
guide is telling:
Regulatory Guides are issued to describe and make available to the public methods acceptable to the NRC staff of implementing specific parts of the Commission's regulations, to delineate techniques used by the staff in evaluating specific problems or postulated accidents, or to provide guidance to applicants. Regulatory Guides are not substitutes for regulations, and compliance with them is not required. Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuation of a permit or license by the Commission.
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i presumptively meets the relevant regulations. But failure to meet a regulatory guide does not mean the plant is unsafe. An applicant is free to meet NRC regulations in any way it believes is appropriate. The Staff and Licensing Boards must determine if the selected method does, in fact, meet the regulations.
This is precisely what has been going on for years in the Shoreham proceeding. Staff reviewers have looked at Shoreham in great detail and, where LILCO has decided to comply with regulations in ways other than those specified in regulatory guides, they have had to make independent determinations con-cerning the adequacy of LILCO's choice. The Staff's Safety
-Evaluation Report (SER), its supplement and Staff testimony will document the conclusions reached. And that conclusion will in-volve whether Shoreham complies with regulations not whether it complies with regulatory guides.1/
Therefore, given the nature of regulatory guides, nothing will be lost in terms of safety and much is to be gained in terms of expediting the process if this Board stands by its March 5 order.
1/ SOC's attempt to disguise the nature of its challenge by emphasizing the " goals and standards" of the regulatory guides is meaningless. The goal of a regulatory guide is compliance with regulations. If SOC wants to challenge Shoreham's compliance with regulations it should do so directly, subject, of course, to the limitations of 10 CFR S 2.714.
IV.
For the reasons noted above, SOC contention 19 should be limited to recently issued regulatory guides. Since the parties have agreed to the particularization of the contention as sub-mitted, the Board need only sort out the "recent" from the not so "recent".
The Board's March 5, 1980 order does provide guidance on what should be considered "recent". Obviously, the Board held that the TMI-2 accident in March, 1979 was sufficiently recent to justify raising new contentions. Other developments during 1979 were also found to be sufficiently fresh to support con-tentions.8/ On the other hand, developments in 1977 and 1978 were found not to be sufficiently fresh.1/ Thus, it would appear that a date around the time of the TMI accident, might be an appropriate cut-off. To avoid the arbitrariness of selecting a specific date, the Applicant suggests that any regulatcry guide issued in early 1979 or later be included in the ranks of recent regulatory guides. This means that up to a year would have elapsed between the issuance of a particular guide and the filing of SOC's intervention petition (January 24, 1980) --
certainly a generous view of "recent" developments.
8/ For example, I&E Bulletin 79-26 (November, 1979) justi-fied admission of SOC contention 15 and NUREG-0630 (November, 1979) justified the admission of SOC contention 16.
El Contention 18 was dismissed because it attempted to raise an "old" issue. SOC had relied upon a July, 1977 study and a September, 1978 regulatory guide.
Attachment 1 to this response includes a table showing the date of issuance of the most recent revision for each of the re-gulatory guides covered in SOC's contention 19. Of these, only seven have been issued or revised since early 1979 (1.8, 1.9, 1.23, 1.140, 1.143, 1.144 and 1.145). The Applicant concedes that regulatory guides 1.9, 1.140, 1.143 and 1.144 are "recent" regulatory guides and can be admitted for adjudication under the Board's order of March 5, 1980. Regulatory Guide 1.8 has two recent revisions (February, 1979 and September, 1980) but both of them have only been issued in draft form. It would make little sense to litigate Shoreham's compliance with a regulatory guide, which itself is only guidance even when final, unless it has been formally approved. The same argument can be made for excluding regulatory guides 1.23 (issued for comment September, 1980) and 1.145 (issued for comment August, 1979). Therefore, the Board should find that SOC's contention 19 is admissible only with respect to regulatory guides 1.9. 1.140, 1.143 and 1.144 V.
In arguing for the acceptance of its proposed contention 19, SOC has seriously misread this Board's March 5, 1980 order and has chosen to ignore the limitations placed on its untimely intervention as a consequence of 10 CFR S 2.714. The Board should not overlook these errors. In keeping with the urgent need to 1
apply the NRC's rules to ensure timely and effective licensing
t hearings, the Board should admit contention 19 along the lines discussed above.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY WMaylyf RMtel'ey, y AnthonyT. Earley, R.IJJ '/
Hunton & Williams P. O. Box 1535 Richmond, VA 23212 Dated: April 2, 1981 4
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In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
-Docket No. 50-322 CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Response to SOC's Motion for Acceptance of Contention 19 were served upon the following by first-class aail, postage prepaid, on April 2, 1981.
Louis J. Carter, Esq. Jeffrey C. Cohen, Esq.
Administrative Judge New York State Energy Office 23 Wiltshire Road Swan Street Building, Core 1 Philadelphia, Pennsylvania 19153 Empire State Plaza Albany, New York 12223 Dr. Oscar H. Paris Administrative Judge Mr. Jay Dunkleberger Atomic Safety and Licensing New York State Energy Office Board Panel Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D. C. 20555 Albany, New York 12223
__ Mr. Frederick J. Shon Howard L. Blau, Esq.
Administrative Judge 217 Newbridge Road Atomic Safety and Licensing Hicksville, New York 11801 Board Panel U.S. Nuclear Regulatory Commission Ralph Shapiro, Esq.
Washington, D. C. 20555 Cammer and Shapiro, P.C.
9 East 40th Street Secretary of the Commission New York, New York 10016 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 David J. Gilmartin, Esq.
Attn: Patricia A. Dempsey, Esq. -
Atomic Safety and Licensing County Attorney Appeal Board Panel Suffolk County Department U.S. Nuclear Regulatory Commission of Law ,
Washington, D. C. 20555 Veterans Memorial Highway I Hauppauge, New York 11787 Atomic Safety and Licensing Board Panel Mr. Marc W. Goldsmith U.S. Nuclear Regulatory Commission Energy Research Group, Inc.
Washington, D. C. 20555 400-1 Totten Pond Road l Waltham, Massachusetts 02154 l Bernard M. Bordenick, Esq.
U.S. Nuclear Regulatory Commission Washington, D. C. 20555 l
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Stephen B. Latham, Esq. MHB Technical Associates Twomey, Latham & Schmitt 1723 Hamilton Avenue 33 West Second Street Suite K P. O. Box 398 San Jose, California 95125 Riverhead, New York 11901
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Adthony F# Eaftsy, Jr/.J /
Hunton W illiams V/
707 East Main Street P.'O. Box 1535 Richmond, Virginia 23212 Dated: April 2, 1981 i
t Attachment 1 Regulatory Guide Revision Date 1.2 0 November, 1970 1.6 0 March, 1971 1.7 2 November, 1978 1.8 1-R- May, 1977 For Comment February, 1979 For Comment September, 1980 1.9 2 December, 1979 1.11 0 February, 1972 1.13 0 March, 1971 For Comment December, 1975 1.23 0 February, 1972 For Comment September, 1980 1.26 2 June, 1975 For Comment February, 1976 1.29 3 September, 1978 1.31 3 April, 1978 1.32 2 February, 1977 1.44 0 May, 1973 1.48 0 May, 1973 1.52 2 March, 1978 1.56 0 June, 1973 -
For Comment July, 1978 1.60 1 December, 1973 1.61 1 October, 1973 1.63 2 July, 1978 1.68 2 August, 1978 1.75 2 September, 1978
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Regulatory Guide Revision Date 1.78 0 June, 1974 1.80 0 June, 1974 1.89 0 November, 1974 1.92 1 February, 1976 -
1.95 1 January, 1977 1.96 1 June, 1976 1.100 1 August, 1977 1.109 1 October, 1977 1.110 For Comment March, 1976 1.111 1 July, 1977 1.112 0-R May, 1977 1.113 1 April, 1977 1.115 1 July, 1977 1.116 0-R May, 1977 1.118 2 June, 1978 1.122- 1 February, 1978 >
1.124 1 Jandary, 1978 1.125 1 October, 1978 -
1.126 1 Furch , 1978 1.128 1 October, 1978 1.129 1 February, 1978 1.130 1 October, 1978 1.139 For Comment May, 1978
4 Regulatory Guide Revision Date 1.140 1 October, 1979
. 1.141 For Comment April, 1973 1.143 1 October, 1979 1.144 1- September, 1980 4
1.145 For Comment August, 1979 i
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