ML19350E862
| ML19350E862 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/17/1981 |
| From: | Latham S SHOREHAM OPPONENTS COALITION, TWOMEY, LATHAM & SHEA |
| To: | U.S. COURT OF APPEALS, 2ND CIRCUIT |
| Shared Package | |
| ML19350E863 | List: |
| References | |
| NUDOCS 8106230596 | |
| Download: ML19350E862 (18) | |
Text
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UNITED STATES COURT OF APPEALS 4'8
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FOR THE SECOND CIRCUIT
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SHOREHAM OPPONENTS CGALITION,
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PETITIONFOREXTk[6RDINARY
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INJUNCTIVE RELIEF PE,NDENTE
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LITE PURSUANT TO THE ALL
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WRITS ACT THE NUCLEAR REGULATORY COMMISSION,)
HAROLD DENTON AS THE DIRECTOR OF
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No.
NUCLEAR REACTOR REGULATION, and
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THE LONG ISLAND LIG9 TING COMPANY, )
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b nl/N Respondents.
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x The Shoreham Opponents Coalition, petitioner herein, by its attorneys, TWOMEY, LATHAM & SCHMITT respectfully petitions this Court, pursuant to Rule 21(c) of the Federal Rules of Appellate Procedure and 28 U.S.C. Section 1651(a), for injunctive relief, pending particular final agency action by federal respondents herein.
In support of its application, petitioner submits the following:
[
Proceedings Below On November 26, 1980, the Long Island Lighting Company
("LILCO") requested the Nuclear Regulatory Commission ("NRC") for an extension of the latest completion date in the then existing construction permit for the construction of a nuclear reactor in Shoreham, New York, on the north shore of Long Island in the County of Suf folk ( the "Shoreham Station").
LILCO requested an X603 s
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extension of the latest completion date from December 31, 1980 to March 31, 1983'(Appendix A).
Pursuant to-NRC practice, the extension was made effective immediately, without a separate agency order, pending NRC action on the application for the extension.
uon January 23, 1981, the Shoreham opponents Coalition
(" SOC") filed a petition with the NRC requestino a) pursuant to Section 189(a) of the Atomic Energy Act of-1954, as amended, 42 U.S.C. Section 2239, that the NRC institute a hearing on LILCO's application for a construction permit extension; and b) pursuant to 10 CFR Section 2.206, that the respondent Director of Nuclear Reactor Regulation institute a proceeding to modify, suspend or revoke the Shoreham Station construction permit, based on grounds identified by SOC, and, further, that the Director suspend LILCO's construction permit pending the outcome of that proceeding (Appendix B).
LILCO filed twc responses to the SOC petition, the first on February 4, 1981, and the second on February 27, 1981 (Appendix C).
On April 14, 1981, SOC wrote respondent Director of Nuclear Reactor Regulation demanding a response to its January 23, 1981 petition and underscoring the prejudice to SOC caused by federal respondents' inaction.
SOC received no reply to its April 14, 1981 letter (Appendix D).
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To date, the-federal respondents have fnited to take any-action with respect to SOC's petitione.
Meanwhile, construction has proceeded twsard completion under the extendnd permit without
' ssues or disposit ion o f ' SOC's any hearing on the relevant i petitions by federal respondents.
Thus, there are no agency.
orders oc opinions be'ow.
Jurisdiction The jurisdiction of the federal respondents is founded on th'e Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 5841 and-110 CFR Section 1.61.
The jurisdiction of this Court is founded on 42 U.S.C.
2239(b) (Atomic Energy Act); 28 U.S.C. Section 2342 (Administrative Orders Review Act); Rule 15 of the Federal Rules of Appellate Procedure; the Fifth Amendment to the United States Constitution; and 28 U.S.C. Section 1651 (All Writs Act).
Issues Presented 1.
Should this Court suspend the construction permit for the Shoreham Station which was automatically extended by the NRC without a hearing last November, 1980, pending this Court's review of either the NRC's future denial of a hearing under Section 189(a) of the Atomic Energy Act, or the outcome of that statutorily required hearing on LILCO's application for the extension to the permit?
2.
Should this Court suspend the construction permit for the Shoreham Station pending this Court's review of the Director of -
l e.
a Nuclear Reactor Regulation's final action for the NRC on petitioner's request under 10 CF!t Section' 2.206 for a proceeding to modify,. suspend or revoke LILCO's construction permit?
Statutes Involved The issues presented at this time in the proceedings bele <
do not turn on respondents' interpretation of statutory provisions, but rather involve federal respondents' failure to act and the need to prevent irreparable harm to petitioner's right to due process by preserving the status quo pending final action by the federal respondents and review oy this Court.
Statement of the Case petitioner SOC is an unincorporated association consisting of 20 civic and environmental qroops on Long Island, New York.
SOC, which maintains an office in Smithtown, New York, represents approximately 10,000 persons who live within 60 miles of the construction site for the Shoreham Station, and nearly all of whom are LILCO customers.
The mombers of SOC stand to suffer irreparable harm from the denial of due process by respondents during-current construction activities which are going forward prior to requisite hearings.
Respondent Nuclear Regulatory Commission is an independent regulatory commission established by act of Congress (42 U.S.C.
Section 5841) and is charged with all the nuclear licensing and related regulatory functions of the former Atomic Energy Commission (42 U.S.C. Section 5841(f]).,
Respondent Harold Denton 'is the NRC's Director of Nuclear Reactor Regulation and heads the Of fice of Nuclear Reactor Regulation, which performs NRC licensing functions associated with the construction and operation of nuclear reactors (10 CPR Section 1.61).
Respondent Long Island Lighting Company in a public utility-responsible for providing service to the greater part of Long Island, New York, and which is subject to NRC regulatory and licensing authority for the construction of the Shoreham Station.
- On April 4, 1973, the former Atomic Energy Commission
("AEC") issued, Construction Permit No. CPPR-95 to LILCO for the construction of an 820 Mwe nuclear power reactor in Shoreham, New York.
The permit-stated that the latest date for completion of the plant would be May 1, 1979.
The NRC, which took over the functions of the AEC on January 19, 1975, provides in its regulations at 10 CFR Section 50.55 that, if the proposed construction or modification of a facility is not completed by the " latest completion date", the permit shall expire and all rights thereunder shall be forfeited.
However, upon good cause shown, the Commission will extend the completion date for a reasonable period of time.
Under NRC practice, when an NRC permittee files an application for a renewal of a permit at least thirty days prior to the expiration of the existing permit, the NRC purports to _-
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make the permit renewal effective immenliately, prior to the
' consideration of the application, until the NRC Cinally rules on
'the. application for renawal.
On' December 18, 1978, LILCO requested an extension of the latest completion date in the~ construction permit for the Shoreham Station because of delays LILCO purported to be due to
-strikes, insufficient manpower, severe weather, changes in regulations and late delivery of equipment.
On May 14, 1979, the latest ~ completion date for LILCO's Construction Permit was extended by the NRC from May 1, 1979 to December 31, 1980.
10n November 26, 1980, LILCO requested a second extension of the latest completion date in the construction permit for the Shoreham Station because of delays LILCO alleged to be due to changes in regulations and regulatory interpretations, late delivery of equipment, and difficulties in the completion of plant modifications.
LILCO requented an extonnion of the latest completion date from December 3, 1980 to March 31, 1983 (Appendix A).
On January 23, 1981, SOC filed a petition with the NRC requesting:
a) pursuant to Section 169;a) of the Atomic Energy Act of 1954, as amended, ( " AEl.d ) 42 U.S.C.
Section 2239 "that the NRC institute a hearing on LILCO's application for a second extension to the Shoreham Station construction permit," and "b) pursuant to 10 CPR Section 2.206 of the NRC's regulations, that the respondent Director o f Nuclear Reactor Regulation institute a proceeding to mod if y,
suspend or revoke the Shoreham Station construction r-v y
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permit, based on issues identified by SOC, and further-that the Director suspend LILCO's construction permit pending the outcome of that proceeding."
(SOC's Request to Institute Proceedings, January 23, 1981, (Apoendix 8).
According to the most-recent LILCO electric rate filing setting -forth construction costs, approximately 25% of construction work on the Shoreham Station remains to be completed, and LILCO is now proceeding with that construction on an expedited basis.
Federal respondents have failed to institute the requested hearing under Section 189(a) of the AEA on LILCO's application for an extension to its construction permit, and have further failed to either institute a proceeding in response to SOC's petition under 10 CPR Section 2.206 or advise SOC in writing, as required by regulation, why such a proceeding will not be instituted in whole or in part.
Federal respondents' failure to take any action on petitioner's requests below currently deprives petitioner of due process and, as construction proceeds toward co:npletion, federal respondents' continuing f alure to act causes further irreparable injury to petitioner's right to due process.
A hearing on LILCO's application for_an extension to its construction permit and a proceeding to determine whether
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suspend, modify or revoke LILCO's permit will be meaninglecs once remaining construction has been completed in whole or substantial part.
Review of final agency action by this Court would be a
. moot exercise'. '
i s
Reasons for Gr2 ing the Writ The members of SOC have Constitutional right to receive due process at a meaningful time in the proceedings below.
At a minimum, they have a right to a hearing under Section 189(a) of the AEA on LILCO's request for an extension to the construction permit before all or a substantial part of the remaining construction is completed.
Lower Alloways Creek TP v.
U.S.
Nuclear Regulatory Commission, 481 F.
Supp. 443, 454 (D.N.J.,
1979). Similarly, SOC has a right to receive a timely ruling on its request under 10 CPR Section 2.206.
A denial by the NRC of SOC's request for a hearing under Section 189(a) of the AEA we ald be dires.ly reviewable in this Court of Appeals.
Desrosier v. NRC, 487 F.
Supp. 71, 74 (S.D.
Tenn., 1980).
Similarly, a denial by the respondent Director of Nuclear Reactor Regulation of all or part of SOC's request under 10 CFR Section 2.206 would be subject to direct review by this Court.
Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 485 F.Supp. 85, 88 (W.D. PE., 1979), aff'd 619 F.2d 231 (3rd Cir., 1980); New England Coalition on Nuclear Pollution v.
NRC, 582 F.2d 87, 99 (1st Cir., 1978).
Thus, this Court now has " exclusive review j u risd iction" over the matters now before the federal respondents.
Susquehanna Valley Alliance, supra, 619 F2d at 237.
Pursuant to the All Writs Act, 28 U.S.C. Section 1651(a), this Court has the authority, based on its already established exclusive review
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s jurisdiction, to issue preliminary-injunctive relief in order to prevent irreparable damage to petitioner, heretin the form of a denial of due process,-and to preserve the integrity of this Court's ultimate review of the Federal actions.
FTC V. Dean Foods Co., 384 U.S. 597, 604-05 (1966); American Public Gas, Association v.
FPC, S4 3 F.2d 356 ( D.C. Cir., 1976).
This principle of the All Writs Act is applicable to cases before the NRC.
Susquehanna Valley Alliance, supra, 619 F.?1 at 237.*
The protracted continuation of the automatically extended construction permit and activities thereunder prior to petitioner's receipt of full administrative and judicial consideration constitutes a violation of plaintiff's right of due process, which may be enjoined.
Lower Alloways Creek TP. v. U.S.
Nuclear Regulatory Commission, 481 F.
Supp. 443, 444 (D.N.J.,
1979).
Federal respondents have petitioner trapped in the agency forum as a result of respondents' failure to rule on petitioner's applications below.
hithout this Court's prompt intervention and
- Pursuant to the guidance of the Court of Appeals in the Third Circuit, petitioner SOC has simultaneously filed suit in the Eastern District of New York seeking to compel federal respondents to comply with the applicable statutes and regulations, by instituting the necessary hearingn under AEA Section 189(a) and ruling en petitioner's 10 CFR Section 2.206 application before the agency.
Susquehanna Valley Alliance, supra, 619 F.2d 241, 245.
Should the Court of Appeals find that the claims in District Court for mandamus are also properly.
before the Court of Appeals, petitioner would support that determination and would request that all appropriate relief be granted in one order by this Court..,
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e a suspension of the automatically extended construction permit, petitioner _will suffer further. irreparable injury as construction hurtles-forward to completion while the federal respondents sit on petitioner's requests.
Moreove r, witnout action by' this Court, its own ability ultimately to review.ind correct federal respondents' actions will be_further eroded on a day-by-day basis.
CONCLUSION For the foregoing reasons, this petition for injunctive relief-should be granted and the construction permit issued by federal respondents should be suspended pending agency and judicial review of the matters below.
Should the Court find that petitioner's request in the District Court for writ of mandamus is also properly before this Court, the federal r.spondents should be ordered, to comply with the applicable statutes and regulations by instituting the requisite hearing under Section 189(a) of the AEA, and issuing a ruling on the petitioner's application under 10 CPR 2.206.
Dated:
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[ ],\\ l Paspectfully submitteri, TWOMEY, LATilAM & SCIIMITT ul by
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Stephen B.
Latham Attorneys for the Shoreham Opponents Coalition 33 West 3econd Street P.O.
Box 398 Riverhead, N.Y.
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o LONG ISLAND LIGHTING COM PANY
[dbO sHOREHAM NUCLEAR POWER STATf0N P.O. sox 618. NORT M COUNTRY MO AD. WAotNG movtR. N.Y.11792
.,.g November 26, 1980 SNRC-517 Mr. Harold R. Denton Director of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission Washington, D. C.
20555 SHORERAI NUCLEAR POWER STATION - UNIT 1 Construction Permit No. CPPh-95
Dear Mr. Denton:
Pursuant to 10 CFR 6 50.55(b), Long Island Lighting Company requests that the Nuclear Regulatory Commission extend the date for completion of the Shoreham Nuclear Power Station, Unit 1, from December 31, 1980*/ o March 31, 1983.
The t
extension is needed for a number of reasons which include:
1.
New Regulatory Requirements 2.
Evolving Interpretation of Existing Regulatory Requirements 3.
Late Delivery of Equipment 4.
Unexpected Difficulties in Completion of Required Plant Modifications These factors sre discussed below:
1.
New Regulatory Requirements As a result of the accident at Three Mile Island and the subsequent investigation of that accident, a significant number of new regulatory requirements have been adopted or are in the process of being adopted.
Accordingly, LILCO has had to factor additional time into the construction schedule *o accommodate:
A.
the time required for the promulgation of final regulatory requirements; B.
- the reworking of systems where existing equipment must be modified and/or replaced; and C.
the design, procurement and installation of new systems-and equipment.
See 44 Fed. Reg. 29545 (1979) hN d713 APPENDIX A I-CD C'
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Mr. H0rald R. Denton
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- Construction Permit No. CPPR-95 November 26, 1980 Page 2 Significant new requirements include the Technical Suppo t C (TSC),
Post Accident Sampling Facility, and the Emergency O r
enter Facility (EOF).
existing buildings or the construction of new buildingsEa perations sampling capability and instrumentation are also being develop Additional to meet the functional requirements of these faciliti e
these regulatory requirements are still in various stes.
- Moreover, development.
ages of 2.
Evolving Interpretation of Existing Regulatory Requirements NRC regulaticos are Using all available guidance,primarily stated in general terms.
Shoreham such that, in their iudgment,LILCO and its contractors designed general requirements was achierti.
compliance with these with the general C;mmission regulations. responsibilities the In exercising its review anca LILCO had been able to present sufficient In most instances, these Staff. concerns.
In a number of cases, however,information to resolve has elected to incorporate modifications requested by the S LILCO An example of such modifications is the addition taff.
for loose parts monitoring.
of a new system 3.
Late Deliver Lof egu yn g.
in the completion of Shoreham. Late delivery of components has continue e delays date for the 480 volt LPCI motor generatorA significant example is the delivery the Staff's concerns raised during preparation'of (MG) sets.
To address SER.
MG sets were incorporated in the design of the LPCI the Shoreham power supplies.
caused the vendor's expected delivery date to be delaye system
. have December 1979 until March 1981.
rom The and hanger ma mavailability of small bore piping valves, orificer, the Main Steam Tu..nel.x-ials has slowed the completion of piping delayed completion of the systems for which itThe absence of this eq work in had an adverse impact on the completion of other effo is needed, but it also area.
rts in the 4.
Unexpected Difficulties in Completing Plant Modific ations to meet regulatory requirements.There have been unexpected difficulti For example, g systems impingement,the Main Steam Tunnel were modified to meet NRCsystem desig to the original design effort.and separation critoria which evolved subsequen pipe whip, jet Additionally, the delays in completing the pipislowly This work has proceeded more unnel.
installation as noted above.resulted in secondary delays in electrical co ng systems have mentation m
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o Mr. Harold R. Denton a
Re:
Construction Permit No. CPPR-95 November 26, 1980 Page 3 Another example of the unexpected difficulties in completing the construction effort is reflected in the motor control centers /
cable / conduit design and installation dif ficult.Len resulting from the imposition of final pipe break analysis criteria.
LILCO has, wherever possibic, made schedulinq and administrative changes to compensate for the unanticipated delays described above.
The net result, load date.
however, has been to extend the expected fuci We reported to the NRC Caseload Forecast Panel in May 1980 that the plant would be ready to load fuel between June and September 1982.
Our current project plans establish a May 31, 1982 fuel load.
for the completion of Shorcham,Accordingly, and in order to provide a s it is requested that the latest completion date be extended from December 31, 1980 to March 31, 1983.
Very pruly yours,
/
D%
J.
P. N var'o, Project' Manager Shoreham Nuclear Power Station RH/cc cc:
Mr.
D. J. Youngblood, Chief, Licensing Branch No. 1 3 J.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
x In the Matter of Construction LONG ISLAND LIGHTING COMPANY Permit Number CPPR-95 (Shorehham Nuclear Power Station, Unit 1)
x PETITION OF THE SHOREHAM OPPONENTS COALITION (SOC)
TO INSTITUTE PROCEEDINGS ON WHETHER GOOD CAUSE EXISTS TO EXTEND THE COMPLETION DATE OF THE SHOREHAM NUCLEAR POWER STATION - UNIT _1 Pursuant to Section 189 of the Atomic Enerqy Act of 1954 (42 USC, Section 2239) and pursuant 10 CFR, Section 2.206(a), the Shoreham Opponents Coalition
- requests that a proceeding be instituted to determine whether good cause exists to extend the completion date for the above-referenced construction permit and, if such determination is made, to determine what requirements should be imposed as a condition of extending the construction permit.
The Shoreham Opponents Coalition requests that, to protect public healta and safety, the Shoreham construction permit be suspended pending the outcome of the hearing.
As additional relief, the basis for which is set forth in this letter, SOC requests that the Shoreham construction permit be revoked at the conclusion of this hearing or reissued with conditions determined to be appropriate.
- Hereinafter " SOC".
SOC has been admitted as an intervenor in the NRC Shoreham Operating Licensing Proceeding (Cocket 50-322) pursuant to an Order of the Shoreham ASLB dated May 1, 1980.
ptAV k 6 I APPENDIX B i
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9 I.
LEGAL BASIS AND STANDARDS FOR THIS REQUEST TO INSTITUTE PROCEEDING The Long Island Lighting-Company (LILCO) has requested that the NRC extend the completion date for Shoreham Nuclear Power Station - Unit 1 from December 31, 1980 to March 31, 1983 (Attachment A).
The Commission's regulations (10 CFR, Section 50.55(a))
state that if the facility is not completed by the latest completion date in the construction permit, the permit shall expire and all rights thereunder shall be forfeited provided, however, that upon good cause shown, the Commission will extend the completion date for a reasonable period of time.
SOC contends that good cause to extend the construction permit does not exist.
Circumstances have arisen since the issuance of the construction permit in 1973 and since its extension in 1979 which demonstrate that the licensing board's previous finding pursuant to 10 CFR 50.35(a)(4) that "the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public" is no longer valid.
In addition, SCC believes that a supplemental FES for the Shoreham project is required as a preregaisite to action on LILCO's construction permit extension request.
SOC contends that the NEPA analysis will lead to the revocation of the Shoreham construction permit in favor of a conservation alternative.
The licensing board opinion in the case of Indiana and Michigan Electr!. Comoany (Donald C. Cook Nuclear Plant, Units 1 and 2) ALAa-129, 6 AEC 414 (1973) shows that SOC is entitled to a proceeding to determine whether good cause to re-extend the construction permit exists in light of new circunstances.
The decisions in
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the cases of Brooks v. AEr, 476 F2d 924 (D.C. Circuit, 1973) and Sholly v. NRC, F2 d __, _
(U.S.
Court of Appeals, District of Columbia Circuit, No. 80-1691, November 19, 1980) likewise show that residents in the vicinity of proposed nuclear facilities are entitled to hearings before extensions to constructions permits are issued.
Under 10 CFR Section 30.91, the licensing board is to evaluate a request for a construction permit extension by the same criteria it uses to evaluate the construction permit itself.
While SOC is required by 10 CPR Section 2.206 to come forward with information constituting the basis for its request that the construction permit be suspended and subsequently revoked or reissued subject to conditions, the ultimate burden of proof in this proceeding is on the construction permit holder.
See Consumers Power Company (Midland Plant, Units 1 and 2) ALAN-283, 2 NRC 11 (1975); Toledo Edison Company (Davis Besse Nuclear Power
. cation) 4 AEC.801 (1972); and Union Electric Company (Callaway Plant, Units I and 2) ALAB-348, 4 NRC 225 (1976).
The licensing board has the authority to revoke construction permits under 42 USC 2236(a) if it finds
- hat conditions exist which would have warranted the board to refuse to issue a permit in the first place.
The board has authority to extend the construction permit while imposing conditions, as requested in the alternative by SOC, under 42 USC Section 2233.
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II.
THE SHOREHAM CONSTRUCTION PERMIT _SPOULD,BE REVOKED A.
NEPA Balance of Costs and Benefits 1.
Requirement of a Supplemental PES The Environmental Statement (FES) prepared for the Shoreham project (NUREG-0285; October, 1977) no longer accurately states the costs, risks or benefits of the Shoreham nuclear power plant because of cha.1ged circumstances since the FES was issued.
The proposed reissuance of a construction permit by extending the completion date is a federal action which
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requires reconsideration of the environmental risks, costs and benefits of the proposed project.
In determining whether this_ reconsideration requires a new environmental statement, a supplemental environmental statement, or a negative declaration, the Commission is guided by the Council on Environmental Quality's guide'ines published in 40 CFR 1500 et. seq.
See 10 CFR Section 51.5(b).*
Environmental impact statements are to be included in every recommendation or proposal for major federal action significantly affecting the quality of the human environment.
See 40 CFR Section 1502.3.
In parcicular, agencies are to prepare supplements to final environmental impact statements if there are significant new circumstances or information relevant to environmental concerns, bearing on the proposed action
- The NRC has previously acknowledged its NEPA responsibilities relative to an extension of the Shoreham construction permit.
LILCO's prior request for an extension of the Shoreham CP (dated December 18, 1978) prompted an environmental impact appraisal by the Commission's Division of Site Safety and Environmental Analysis which led to a Negative Declaration.
SOC assarts that the circumstances surrounding this latest LILCO CP extension request require the preparation of a supplemental FES.
a m or its; impacts.
See 40 CFR 1502.9(c).
The reissuance of a construction permit for a project' approved by a federal agency constitutes a major federal action.
See 40 CPR-1508.18(a) and (b)(4).
The Commission's own regulations specifically authorize the Commission to require applicants for permit renewals ~to subt'it such information as may be useful.
See 10 CFR Section H51.6(c)(3).
The Commission has held that where circumstances arise during construction which could change the NEPA balance of costs and benefits, the construction permit should be suspended until the effects of the new circumstances can be assessed.
See Public Service Commission of New Hampshire (Seabrook Station, I and 2)
NRC__,,, NRR (CCH), para. 30,172, Commission Memorandum and Order, March 31, 1977.
Accord, George Power Company (Alvin W. Vogtle Nitclear Plant, Units I and 2) ALAB-291, NRC,,
, NRR (CCH), para. 30,017, sagtember 24, 1975.
The NEPA issues raised in this Petition to Institute Proceedings cannot be deferred until the operating license stage.
The circumstances of this case now show that the risks of constructing and operating Shoranam are greater than had previously been apprectited, the costs have increased, and the benefits have decreased.
As a result, at this point the clearly superior alternative for supplying Long Island's power needs is the institution of a vigorous conservation effort and cancellation of Shoreham Nuclear Power Plant.
Since NEDA cost / benefit analyses typically count constructico costs expended on one altarnative as part of the ccat of undertaking another alternative, a NEPA ar,alysis would be distorted if the conservat;on alternative were not considered until after completion of the plant.
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The benefits of completing Shoreham will be f ar less than was anticipated in the Staff's Environmental Statement accompanying the co...oruction 3ermit application.
The applicant's load forecasts concede demandIfor electricity on Long Island has plummeted, even since~the December 18,-1978 request for a CP extension.
As a result, the need-for-power determination made at the time of the construction-permit application is no longer valid.
See Attachment B.*
A conservation program would fulfill the remaining need for power at a lower economic and environmental cost than the combined past and future costs of completing Shoreham.
In proceedings before the New York Public Service Commission (PSC), SOC has developed a " Conservation
-Alternative'to the Power Plant at Shoreham, Long Island," prepared by Energy Systems Research Group (ESRG: Alcachment C).
This report presents a cost / benefit analysis demonstrating th e advantages of cancelling Shoreham in fa"or of a comprehensive conservation program.
The ESRG report snould be the foundation for the NEPA cost /Denefit analysis to be prepared as part of the aupplemental FES.
- A comparison of LILCO's 1978 and 1980 peak load projections for' 1985 shows a drop of 605 Mw ( f rom 3830 Mw to 3225 Mw).
1
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2.
'"Claes 9" Accident Analysis On~ December 24, 1980, NRC Staff Counsel Bordenick issued a document: captioned "NRC Staff's Position Regarding Consideration.of " Class 9" Accidents" relative to the Shoreham OL proceedings (Docket No. 50-322).
Staff has concluded that it will not consider'" Class 9" accidents in the'Shoreham proceeding absent a showing of "special circumstances" pursuant to 10 CFR Section 2.578(b).
The sole justification for the exclusion of
" Class 9" accidents is the fact that the FES for Shoreham was issued in October, 1977 and thus Shoreham is not automatically subject to the " Class 9" review otherwise mandated by the Commission's recent " Statement of Interim Policy on Nuclear Power Plant Accident Considerations Under The N&tional Environmental Policy Act of 1969"- (4 5 Fed. Reg. 40101; June 13, 1980).
Staff's position is shortsighted, contrary to genuine concerns regarding public health _and safety, and, in the words of Commissioners Bradford and Gilinsky,
"... absolutely inconsistent with an even-handed reappraisal of the former, erroneous position on Class 9 accidents." (45 Fed. Reg. 40103, n.5)
Both Staff Counsel Bordenick and NRR are undoubtedly aware of the criticisms of the President's Council on Environmental Quality (CEQ) of the NRC's prior treatment of accident considerations under NEPA (see e.g., letter from CEQ Chairman Speth to Commissioner Ahearne dated March 20, 1980).
CEO has specifically recommended the preparation of a supplemental FES addressing " Class 9" accidents as part of the CP extension review for the Bailly Generating Station, Nuclear 1 (Attachment D).
The circumstances prompting a " Class 9" analysis for the Bailley-1 unit are suf ficiently similar to the circumstances at Shoreham to require a " Class 9" assessment in the Shoreham proceeding.
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The Applicant and Staff will undou'btedly argue that Shoreham's " advanced" stage of construction'should preclude a' Class 9 evaluation in this case.
- However, SOC-believes that serious questions of public safety may not legally be ignored on the basis of cost of plant modifications.
Furthermore, in view of the unique siting considerations regarding-Shoreham, particularly in the area of evacuation, Staff's decision to ignore Cl ass 9 considerations at Shoreham would foreclose
. development of vital emergency preparedness measures.
Finally,-as the Petition documents, LILCO's claims that SNPS is almost completed are exaggerated.
The environmental-risks of operating a nuclear power plant are now better understood than they were when the final environmental statment was issued to accompany the construction permit.
The Commission's June 13th Statement of Interim Policy directs that environmental impact statements should consider the environmental consequences of accidents including those resulting in melting of the reactor core.
Environmental
^ impact statements should discuss not only environmental risks but also health.and safety risks to people.
The Commission states its ratienale for the interim policy starament os follows:
[A] beginning should now be made in the use of these (risk-assessment] methodologies in the regulatory process; and... such use will repre-sent a constructive and rational forward step in the discharge of [the Commission's] responsi-bilities.
While the Commission cautions against reopening or expanding previous or ongoing proceedings, such considerations do not apply to the Shoreham plant because the hearing accompanying a construction permit extension is not an extension of the construction permit hearings but rather a separate proceeding to determine whether good cause exists to reissue the permit.
In any case, the Staff is explicitly directed to consider preparing a supplement describing the environmental consequences of a " Class 9" accident in a case such as i
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..s Shoreham.
The statement of-interim-policy directs:
[Il t is also the intent of'the Commission that the Staff... identify additional. cases that
-might warrant early consideration of either additional features or other actions which would-prevent or mitigate the consequences of a serious. accident.
Cases for such considera-tion are those for which a final environmental statement has already been issued at the con-struction permit stage but for which the operating license review stage _has not yet been reached.- In carrying out this directive, the -Staf f should consider relevant site features, including population density, associated with accident risk in comparison to such. features at presently operating-plants.
Staff should also consider the likelinood that substantive changes in plant design features which-may compensate further for' adverse site features may be more easily incorporated in plants when construction has not yet progressed very far.
In preparing a supplemental EIS pursuant to 40 CRP Section 1506.3 and 1502.9(c), NRR must make an independent determination of the probable completion date and remaining construction costs.
As outlined in this Petition, LILCO has repeatedly failed to accurately assess either the project cost or completion date for Shoreham and thus LILCO's cost estimates or completion schedule cannot be accepted at face value for purposes of the requested NEPA review.
It is essential that NRR critically examine the likely Shoreham completion schedule (and likely project cost); enaluate the site-specific consequences from " Class 9" accidents; and compare those costs with the benefits of the ESRG conservation scenario before reaching any final decision on extending the Shoreham construction permit.
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SOC therefore requests that the Board suspend the Shoreham construction permit whilethe NRC-Staff-prepares a supplemental environmental impact statement on the Shoreham plant.
The supplement should include three elements.
The first element should be.a. specific analysis of the probability and consequences of:-
-(1) anticipated operational releases;-
(2) infrequent accidents and (3) " Class 9" accidents.
This analysis should include consequences to the liquid-pathway.
The second element of the supplement'should be an analysis of the' probable costs of completing the Shoreham Nuclear Power Station and the period of time likely to be required for such completion.
The third element of the supplement snould be an evaluation of the present need for power in LILCO's service area and the relative merits.of addressing this need with a nuclear power plant versus addressing the need with a conservation program.
When these analyses have been performed, the Staff should then restate its assessment of the environmental costs and benefits of the Shoreham plant.
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-B.
LILCO'S FINANCIAL QUALIFICATIONS As mentioned above, the licensing board is required by'10 CFR Section 50.91 to evaluate construction permit extensions by the same criteria it uses to evaluate applications for construction permits.
One of the
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criteria for issuance of a construction permit is-the issue of the applicant's financial qualifications.
See-42 USC Section 2232(a), 10 CFR Seceion 50.33(f) and 10 CFR Part 50, Appendix C.
SOC contends that because of past cost overruns and schedule slippages and because of the near certainty that the plant will be finished behind schedule and over budget, if at all, LILCO is not financially qualified to build and operate a nuclear power plant.
Under 10 CPR Section 50.33(f), the applicant must come forward with information sufficient to demonstrate to the Commission that it either has, or has reasonable assurance of obtaining, funds necessary to meet construction costs and fuel cycle costs.*
The evidence submitted by LILCO itself in Case No. 27774 before the New York State Public Service Commission requires an assessment of LILCO's financial qualifications prior to a decision by the NRC on whether or not the Shoreham CP should once agcin be extended.
The enormous cost overruns at the Shoreham project have severely jeopardized the financial viability of LILCO.
In the year the Shoreham CP was issued,
- The Commission's authority to. evaluate the applicant's financial and tachnical capabilities is alsc authorized by 10 CFR Section 50.40.
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Shoreham's estimated cost was $350 million.
LILCO's latest estimate, submitted as a basis for its May, 1980 request for $228 million in rate relief, is S2.235 billion.
In.the two years since the last Shoreham CP extension, Shoreham's estimated cost has risen S1 billion, from $ 1.24 billion to S 2.235 billion.
During the past three years, LILCO has repeatedly sought emergency rate relief to cover the cost overruns at Shoreham.
LILCO's 1980 request for emergency rate relief totalled $95.5 million (PSC Case 27774).
The company's estimates of 1980 Shoreham construction expenditures were so uncertain that the emergency rate hearings had to be suspended for 30 days to permit wholesale revisions to the Company's financial testimony to account for a S45 million underestimate in 1980 Shoreham construction expenditures.
The testimony of LILCO's principal financial witness-in the 1980 PSC rate h'arings, Thomas H. O'Brien, Senior Vice President-Finance, dramatically underscored the company's serious financial condition.
Mr. O' Brien noted that the major financial rating agencies periodically analyze LILCO's financial soundness by examining such factors as LILCO's ability to refinance short-term debt and its level of internal cash generation (Case 27774, Tr. 883).
Mr. O'Brien noted that three financial agencies downrated LILCO's securities after the Company filed its request for S228 million in rate relief on May 29, 1980:
Moody's Old Rating New Rating Date of Change 1st Mtgr.. Bonds As A
8/79 G&R Bonds A
Baa 6/80 Pref. Stock A
Baa 6/80 Comm'l I' aper P-2 P-3 6/80 s
Standard & Poor's Old Rating New Rating Date of Change k
1st Mtge. Bonds
.A-Bbb 7/80
~G&R Bonds A-Bbb 7/80 Pref. Stock-A-
Bbb 8/76 Comm'1. Pape.r A-2 A-3 7/80 Fitch 1st_Mtge. Bonds A
A-6/80 G&R Bonds A
Bbb+
6/80 Pref. Stock A-Bbb 6/80 Comm'l.-Paper F-1 F-2 6/80
-(Case 27774; Tr. 884-885)
Mr. O'Brien further stated that the Company's program to refinance short-term debt could not be carried out without emergency rate relief (Case 27774; Tr. 886); that the ability to refinance short-term debt was critical to the Company's construction program (Case 27774; Tr. 889); and that the Company's 1981 construction program was similarly dependent upon satisfactory levels of emergency rate relief (Case 27774; Tr. 891).
Mr. O'Brien testified that the drain of Shoreham's construction expenditures on LILCO's cash flow was endangering the Company's ability to provide adequate service (Case 27774; Tr. 891) and that the f ailure to provide adequate rate relief could place the financial position of the Company in jeopardy (Case 27774; Tr. 892).
Mr. O'Brien even admitted that the Company's cash flow position during 1981 would be "far from satisfactory...even if the full amount of rate relief which the Company is seesing is granted." (Case 27774; Tr. 892)
The Company was precluded from asking for a greater amount of rate relief in 1980 since "that would have placed too much of an increased burden on consumers." (Case 27774; Tr. 893)
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4 73; These dire warnings of the Company's chief financial' witness should be an alarming signal to the
'NRC that LILCO's-financial capabilities at the stage of-the Shoreham~ project is questionable at best.
It'must be further emphasized that the above financial assessment is predicated on a total project cost of S2.2 billion, based on a fuel load date of May, 1982 and an in-service date of January, 1983.
According to LILCO Senior Vice President Charles Davis, a one-year delay in the in-service date would add
$200-300 million to the project cost (Case 27774; Ex.
44).
In view of the substantial. delays in meeting the timetable established by the Company's June 1980 Master Construction Schedule *; the.recent slippage in the issuance of the Shoreham SER (Attachment F); and the numerous remaining regulatory and construction hu rdles such as TMI requirements, ATWS, and containment inerting, a minimum delay in the completion of Shoreham of at least one year is a virtual certainty.
LILCO's financial ability to complete the project is highly questionable.
The foregoing paragraphs have discussed LILCO's history of optimistic representations to the Public Service Commission which subsequently turned out to have been inaccurate.
The Public Service Commission cannot be presumed to be willing to indefinitely go on
- The Company issues " Monthly Status Reports" on the progress of Shoreham construction, many of which were marked as Exhibits in Case 27774.
Most recently (November report), the Company has felt the impact on its construction senedule of its artificial systems turnover' practices.
In order to demonstrate that Shoreham construction was "on schedule", the Company deferred an unusually large number of unfinished items to its Master Punch list and this practice is now further jeopardizing the Master Construction Schedule (Attachment E).
It is essential that NRR review these monthly reports to establish the degree of control which LILCO has over the Shoreham project and to attempt to assess a date by which the project could be completed.
saddling ratepayers with Shoreham construction expenditures when LILCO's promised performance consistently fails to materialize.
In fact, the PSC's restiveness with.LILCO's repeated rate-relief requests is demonstrated by the fact that the'most recent
-proceedings on' rate-relief were combined with an inquiry into the alternatives to completing'Shoreham.
The PSC's receptiveness to further. rate-relief requests can be expected to be dampened even further by the spectacle of the-current' Grand Jury investigation into LILCO's involvement with the Bokum Resources Corp.
Finally,' SOC contends that LILCO's break-neck construction schedule and its chronic capital shortgage create a troubling incentive to cut corners during construction.
LILCO should be required to demonstrate to NRC inspect >rs that its cash-flow problem has not and will not result in any compromise of quality control.
SOC believes that NRR's evaluation of LILCO 's technical and financial capabilities must carefully review-the integrity of the Company's Master Construction Schedule, in particular, the practice of accelerating subsystem turnovers from the constructor to the LILCO Start-Up Organization.
In his summary of the May 8-9, 1980 Caseload Forecast Panel Visit, NRC Shoreham Project Manager Jerry Wilson was critical of the Company's faiure to have developed "the detailed interface between the construction schedule and the preoperational test schedule." (Attachment G)
That
" interface", known as the Master Construction Schedule, was completed in June of 1980.
When it was issued, it contained a number of " negative slack" schedule items (i.e., subsystems that were already behind_ schedule at the time the schedule was established) and a highly optimistic 16-month preoperational test schedule (Attachment G).
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l In an attempt to maintain the.appearanc'e of being
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"on schedule", LILCO has accepted as " turned over" a number of sybsystems with a high number of unresolved construction items.
These items have created a rapidly ballooning " Master punch List" which is becoming the responsibility of the LILCO Start-Up Organization.
In addition to jeopardizjng the construction and preoperational test ~ schedule (see Attachment B), there is no assurance that LILCO has the capability to resolve these numerous Punch List items, complete construction and conduct the preoperational testing withaut compromising the overall integrity of the plant's construction.
-The Commission's regulations (10 CFR Part 50, Appendix C) state that the applicant should provide an estimate of total nuclear production plant costs accompanied by a statement describing the basis from which the. estimate is derived.
Part 4 of the same
-Appendix authorizes the Commission to request the applicant-to submit additional or more detailed information respecting its financial arrangements and status of funds.
SOC therefore requests that the present construction permit be suspended and that the completion date not be extended unless:
(1) LILCO specifies its present estimate of all remaining construction costs and provides the basis for these estimates; (2)
The NRC evaluates these estimates and makes findings on whether they are realistic, and, if they are not, on whether LILCO can finance the true project co st ;
(3)
LILCO provides the NRC Staff with estimates of all fuel cycle costs including the cost of waste disposal as required by 10 CFR Section 50.233(f);
(4)
The NRC completes an investigation into whether items characterized by LILCO as " turned over" have in fact been completed or nearly completed; and (5)
The NRC determines that LILCO's financial position-presents no threat to quality control in the construction of Shoreham.
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C.
SITING CRITERIA i
SOC. contends that operating a nuclear power plant the Shoreham site endangers public health and' safety at because the population dansity and distribution, _the topography, and the configuration of transportation corridors would make prompt evacuation of Eastern Long Island virtually impossible during unfavorable weather conditions.
The Commission's regulations (10 CPR Section 50.35(a)) require that the licensing board make~a finding that "taking into consideration the site criteria contained in Part 100, the proposed facility can be. constructed and operated at the proposed location
.without undue risk to the health and safety of the public before issuing a construction permit."
Pursuant to 10 CPR Section 50.91, this consideration would also govern the reissuance of a construction permit.
The accident at Three Mile Island has sensitized the Commission to the importance of evacuability and siting. ~That accident has led the Commission to recognize the need for more effective emergency response capability.
In proposing new rules on the subject, the Commission stated that it now regards " emergency planning as equivalent to rather than secondary to siting and design in public protection."
See 44 Ped.
Reg. 75169 (December 19, 1979).
On August 19, 1980, the Commissic, published final rules which require workable evacuation plans within an emergency planning zone of ten miles as a condition for operation of a plant (45 Ped. Reg. 55402 et. seq.).
Furthermore, the NRC Staf f acknowledges in NUREG-0396 that a ten-mile radius is not the furthest extent of the area threatened by plume exposure in the event of a
" Class 9" accident.
The Commission's regulations (10 CPR Part 50, Appendix E, Part 3) now require an applicant for an operating license to demonstrate in the PSAR that appropriate measures can and will be taken in the event of an emergency.
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The Commission recently d'irected its Staff tc
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prepare new' siting criteria which could be used as a basis for proposed rule-making on the issue of plant location.
In response, the :Itaf f published NUREG-0625 in August,-1979.
In NUREG-0625, the Staff acknowledged that the risk of accidents including " Class 9" accidents is so high that the consequences of such accidents should be considered in the siting decision.
See NUREG-0625, page 42.
The report-recommends that a minimum radius.for an emergency planning zone would be ten miles and that the actual emergency planning zone around a given plant should be determined by the relationship of topography, transportation corridors and population.
In any case, the emergency planning zone should be capable of being evacuated promptly.
See NUREG-0625, page 48.
The report also acknowledges that the consequences of a " Class 9" accident are not limited to the emergency planning zone but extend to an area twenty miles in radius.
Population density within this large area must be considered in the siting decision.
See NUREG-0625, pages 48-50.
The report follows up this recommendation with a subsequent recommendation recommending that permitees avoid sites with characteristics that require compensatory, unique design features.
See NUREG-0625, page 57.
The report explicitly states as a premise that Although site acceptability is established during the construction permit review, sub-stantive new information could require re-opening the issue of site acceptability any time during the plant life.
SOC contends that the Commission's recent acknowledgement that siting is a necessary component of
" defense in depth" is precisely the kind of "new information" which should be taken into consideration, l
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SOC. contends that Long Island residents living east of Shoreham are " entrapped" in an area from which they_
can only be evacuated by traveling closer to the plant.
The capacity of the roads serving the area does not permit "relatively prompt evacuation"..During the summer, a.large seasonal population strains the road capacity even under non-omergency conditionn.
During
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the winter, storms and snow accumulation frequently reduce road capacity to.a point that makes prompt evacuation impossible.
LILCO admits in the January,-
1979 version-of the FSAR that it would take eiqhty minutes to notify and evacuate only the people living within a two-mile radius of the plant.
See Revision 15 of the FSAR dated January, 1979, figure 13.3.5-3.
NUREG-0625 also recommends that' soil characteristics at the site of a nuclear power plant be such that it would be possible to isolate a melted core before radioactive material escapes in large amounts into the acquifer.
See NUREG-0625, page 53.
The task force envisions plants being located on soil permitting only a slow rate of groundwater movement.
This makes it possible to take interdictive measures before groundwater transport contaminates large amounts of ground and surface water.
Long Island soil and suosoil is extremely porous and permits rapid groundwater transport.
In summary, both the Commission and Staff have recognized as a result of the accident at Three Mile Island, that " Class 9" accidents are possible and that siting must play a role in preventing such accidents trom causing widespread harm.
To license Shoreham, with its unfavorable site characteristics, would constitute a distressing willingness to " grandfather" plants now under construction even though the Commission recognizes the importance of siting in protecting public health and safety.
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If the lessons 1of Three Mile Island are not
- applied to plants under construction,.the' net result will be that only the tiny number of people affected by plants. entering the application process now will benefit
.from these lessons.
SOC requests that the effectiveness of the construction permit be suspended while the applicant and the NRC determine whether "relatively prompt evacuation" offeastern Long Island is possible in the event of a
" Class 9" accident at Shoreham.
It is essential that this relief be qcanted at the CP extension stage and not at the operating license stage.
As the appeal board put it in Northern Indiana Public Service Company (Bailey Generating Station, Nuclear 1) ALAB-619, NRC November 20, 1980:
[W] e are unimpressed with the argument of the applicant and the Staff that petitioners can appropriately be told to withold their site suitability contentions until the operating license stage has arrived.
It does no dis-service to the concept of a two-step licensing process to conclude that in circumstan7es such as those at bar, that_ suggestion offends reason (emphasis added).
Manifestly, if there currently exists substantial cause to believe that the...
site is unacceptable, now is the time to explore the matter further--rather than years hence when, following a substantial additional monetary investment, the facility is nearing completion at that site.
In the alternative, SOC requests that the effectiveness of the construction permit be suspended while the NRC determines whether facility modifications, rather than cancellation of the entire project, should be ordered to compensate for Shoreham's unfavorable site characteristics.
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III. -CONDITIONS THAT MUST BE IMPOSED'ON
- THE COMPANY IF THE' CONSTRUCTION PERMIT IS EXTENDED A.
Documentation of Deviations SOC contends that the Board should reissue the construction permit, if at all, only if it imposes three conditions.
The first condition is-that LILCO agree to provide documentation of allithe instances in which the design of Shoreham differs from the standards set forth in the Standard Review Plan and that LILCO show in each instance that the deviation involves no compromise of safety.
The second condition is that the Staff determine which version of the Standard Review Plan it will use in evaluating LILCO's FSAR and in issuing a SER.
The third condition is that the Staff scrutinize LILCO's documentation of the deviations from the Standard Review Plan, make an independent determination of whether safety is compromised by the deviations, and require facility modifications where the Staff determines they are required.
Because of the extremely long interval between the time LILCO ordered the Shoreham plant from LILCO's vendor and the time LILCO published the FSAR, the issue of which version of the standard review plan to use in evaluating the FSAR is particularly compelling.
Unless the most recent version of the standard review plan is used, the technical lessons drawn from the accident at Three Mile Island will not benefit the public living close to the Shoreham-plant.
This issue is interpenetrated-with the issue of whether and when to require that deviations from the SRP, and justifications for those deviations, be documented.
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1 The NRC and its Sta?' have neknowledqdd in'a number
'of ways that the existinn uce of the standard review plan needs improvement.
A memorandum from Leonard Bickwit to the Commissicr, dated August 14, 1980, on the subject, states:
We and OPE recommend that the review process be improved so as to provide better documenta-tion and greater assurance that the regulations are complied with.... We recommend that the Staff compare the Standard Review Plan and the regulations, document'that comparison, and, when and if necessary, amend either the standard review plan or the reculations.
In this way the Commission would be confident that all of the regulations are covered in the Standard Review Plan... We recommend that where practical, applicants with pending applications be requested to state, with supporting referencesj that each and every. applicable NRC regulation is complied with.
The NRC on December 11, 1980 is sued an advance notice of proposed rule-making on changes in nuclear power plant facilities after issuance of the construction permit.
See 45 Fed. Reg. 81602.
This proposed rule-making addresses itself to the troubling fact that no standards exist for deciding how much of a change from a construction permit an applicant may make before being required to go through the formal construction permit amendment process.
At present, a permitee i:s bound by "the principal architectural and enginee' ring criteria".
In wrestling with the question of "what are principal architectural and engineering criteria and when does a proposed change fall within these criteria?" (see 45 Fed. Reg. 81602), the Staff has suggested that these criteria should be defined by the Standard Review Plan, the general design criteria, the l
regulatory guides, and the branch technical position.
The Commission summarises the problem as follows in its notice of proposed rule-making:
l The key problem, then, is to clarify and specify to what information the CP holder should be bound, at what point in the licensing process, under what circumstances, and through what means.
There is also a need to control the way in which a CP holder implements the NRC criteria.
SOC contends that the problem addressed-in this proposed rule-making is another facet of the problem
- addressed in the Bickwit memo.
As construction permit holders deviate from the principal architectural and engineering criteria embodied by the Standard Review Plan, it becomes necessary to create a recordlaf what these' deviations are and whether they affect safety.
SOC contends further that if LILCO agreed to Jocument Shoreham's deviations from the standard review plan, the problem addressed by.the notice of proposed rule-making would be' resolved in LILCO's case.
In fact, the NRC has previously tak*n the position that LILCO ought to document Shoreham's ueviations from the Standard Review Plan.
See NRR Office Letter #9 by D.C.
Rusche, dated June 18, 1976.
Mr. Rusche subsequently exempted Shoreham from the requirements of documenting deviations.
However, the current directoe of the Office of Nuclear Reactor Regulation reaffirmed that documentation of deviations in the SER "may be desirable."
See Memorandum from Harold Denton to the Comission, dated June 13, 1980 re compliance of operating license applicants with current NRC regulations. to that letter stated that the NRR is reviewing Mr. Rusche's Office Letter 49 to determine if the policy of documenting deviations could be extended to more plants.
Shoreham is a likely candidate for addition to the list and that question should be confronted now.
The Commission published a notice of proposed rs ' e -making on the issue of documenting deviations on Thursday, October 9, 1980.
See 45 Ped. Reg. 67099.
In that notice of proposed rule-making, the Commission stated:
7
w Requiring license applicants'to identify and jur,tify deviations-from the acceptable criteria in the applicable revision of the SRP would enhance the quality of the Staff's review of applications and assist the Staff.
in. making the determinations required by 10 CFR Part 50.
In addition, such decumenta-tion would more clearly identify the cases for the acceptability of plant design and their relationship to current licensing criteria.
Given the support that has been expressed for the documentation-procedure, the Board should assure that Shoreham's SER will document deviations from the standard review plan.- This documentation is practically indispensable when a plant is being reviewed to determine what retrofits or updating of facility design
-should be made.
If dccumentation is permitted to slip a
pass the OL stage, applying the lessons of TMI to Shoreham will only be that much more difficult.
In add i t,io n, if the documentation procedure should show that design modifications were needed, documentation before the plant went critical would permit such modifications to be made without worker exposure or load distribution problems resulti1g from shut-downs.
The need to perform a documentation of deviations for Shoreham is particularly compelling in view of the fact that Shoreham.is a 1960's design and is scheduled to come on line in the 1980's.
In view of the Bingham amendment (Section 110' of P.L.96-295, June 30, 1980) requirement that documentation of deviation will be required for all operating plants, it is logically indefensible to defer a commitment to that requirement at this stage of Shoreham's construction.
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9 B.
TMI-ielated Measures
=The history of-accidents at operating reactors has demonstrated the need for changes in nuclear regulatory strategy.
In particular, the accident at Three Mile Island triggered extensive inquiry within and outside the NRC on what changes were called for.
The Staff's analysis'of this question was published as NUREG-C660.
The sufficiency of the measures described in ?!UREG-0600 (hereinafter referred to as TMI-related issues) is the subject of ongoing debate and litigation.
There are two dif ferent classes of THI-related lessons which must be applied _to SNP3 now in order to protect public health and safety.
First, the analytical techniques applied to the safety analysis of Shoreham must be improved.
Second, specific design modifications must be required now.
- 1. Analyses and Classifications (i)
Systems Interaction.
The accidents at Three Mile Island, Dresden-2, Browns Ferry, and Crystal River showed that, to assure safety, the Staff must consider the potential for adverse, accident-causing or accident-contributing interactions between or among different nuclear plant systems.
In the accident at TMI-2, the combination of closed auxiliary feedwater valves, stuck open pilot-operated relief valves, and misinformation to the operator allowed the failure of adequate feedwater and the partial blow-down to create voids in the primary coolant.
The voids in turn produced misleading pressurizer level indications.
This resulted in the operator terminating emergency cooling water, which
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' eventually resulted in failure of the fuel. -The release
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of radioactivity was due to the high sump level causing-the pump to turn on and pump radioactive waste to the Auxiliary Building where it was released to the environment as a result of additional errors.
The radioactivity in the atmocphere fed'back through the control room ventilation system thereby raising the levels to the point where special breathing apparatus had to be worn by the operators trying to control the accident.
After.the accident, the high radiation levels in the containment and the primary loop have continued to make it very difficult to work on the system to perform the necessary-maintenance functions.
In general, the multiple, interrelated failures involving-
.various systems and their interactions (with and without human intervention) were not foreseen in the safety analyses conducted as part of the licensing process.
The other accidents cited above all i.nvolved the effects of one system on another as well.
In each lastance, the interaction produced more-serious consequences than had previously been expected.
The NRC has repeatedly acknowledged the need for better understanding of the implications of systems interaction for safety.
(See, e.g.,
pp. 148-151, NUEG/CR-1250; NUREG-0585, p.3-3; NUREG-0660, " Task" II.C.3.)
SOC therefore contends that LILCO should be required to complete a systems interaction study demonstrating that adverse interactions will not jeopardize public health and safety at Shoreham.
(ii)
Interim Reliability Evaluation Program (IREP).
The need for plant-specific assessment of accident probabilities for operating reactors has been acknowledged by the NRC's Advisory Committee on Reactor
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safeguards. See letter of Milton'S. Plesset, ACRS l Chairman, to J.F. Ahearne, entitled "ACRS Report on NTOL j
Items from Draf t 3 of NUREG-0660", dated March 11, 1980,
)
NRC News Release 80-56.- The preparation of an IREP 'for Shoreham would address the.need to identify particularly high-risk accident sequences at that plant and would permit a determination of what design modifications would help prevent these high-risk sequences.
SOC therefore contends that preparation of a plant-specific IREP should be a condition of construction permit renewal.
The current classification of systems and equipment into " safety-related" and "non-safety-related" is unsatisfactory and is linked to the now-discredited design basis accident / single failure approach to safety analysis.
As a result, the range of structures, systems, and components subject to quality assurance requirements and NRC review needs to be expanded, payinq special attention to potentially damaging effects of non-safety equipment on safety equipment.
This must be done either by enlarging the safety-related category or by establishing intermediate classifications between systems judged most and least important to safety.
For example, during the course of the TMI-2 accident, several systems that had been classified as non-safety systems were used to mitigate the accident.
The reactor coolant pumps were used at various times to accomplish core cooling.
Had the accident included the loss of of fsite power, the reactor coolant pumps would have been unavailable.
The loss of offsite power during an accident is an event that must be considered in accordance with the provisions of General Design Criteria-17.
However, since the reactor coolant pumps were classified as non-safety components, the lack of an onsite emergency power supply to operate the pumps was not required.
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r Other~ examples of systems classified as non-safety which affected the course of the TMI-2 accident are the pressurizer level. instrumer. e, 'the PORV and its associated block valve and the auxiliary feedwater system.
The failure of the pressurizer level instruments: required termination of reactor coolant pump operation.
As a result, although provisions have been made to supply onsite power to the pressurizer level instruments, the -design is such that a uingle failure
'will. result in loss of power to all three pressurizer level instruments.
The TMI-2 accident also pointed up the need to require-that systems clessified as important to safety meet all the requirements applicable to safety grade equipment.
For example, the emergency core cooling system was not designed to prevent operator interference with. completion of its safety function.
The protection system signals used to initiate ECCS operation were not derived from direct measurements of the desired variable-reactor vessel water level.
The containment isolation system was not initiated by diverse parameters.
Finally, the TMI-2 accident disclosed the inadequacy of the design basis event for which safety.
grade systems must provide protection.
For example, during the TMI-2 accident, an attempt was made to use the Decay Heat Removal (DHR) system for core cooling.
This attempt was unsuccessful for two reasons.
- First, the design basis did not require the DHR system to be operable up to the design pressure of the reactor coolant system.
Second, the DHR system leak rate and radiation shielding design was established on the basis that it would always be carrying water with a relatively low level of radioactive contamination.
Because of the extensive core damage at TMI-2, the DHR system could not
{
.- m-be used because its leak rate and radiation shielding were inadequate t'o prevent excessive radiation exposure and. reactor coolant system pressure was higher than the
'RHR system design pressure.
The preceding demonstrates that the licensing review of TMI-2, while based on a fundamental distinction between " safety" and "non-safety" equipment, was-not adequate to identify all equipment important to safety, to define.the design bases for such equipment, or to identify and prevent adverse interactions between non-safety and safety equipment which can compromise the
' ability of safety systems to perform their necessary functions.
SOC therefore contends that an extension of the construction permit should be conditioned upon LILCO's agreement to either:
(a) suspend construction while the Staff completes its reclassification of the instrumentation, control, and electrical equipment deemed to be safety-related, or (b) upgrade any such equipment which is subsequently reclassified from non-safety-related to safety-related.
2.
Design Modifications SOC contends that the in-plant consequences of the TMI-2 accident demonstrate the need to require two TMI measures:
(1)
Identification and installation of instrumentation needed for detection of inadequate core cooling; and (2)
Determination of need for hydrogen recombiners and implementation of hydrogen control measures adequate to protect health and safety in light of the analysis published in SECY-80-107, Hydrogen Control Requirements for Small Containments, January 22, 1980.
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Public health and safety require that these
.TMI-related ' measures be appliedito the Shoreham plant.
By; requiring LILCO to und'ertake these studies and. design modifications now rather than at the Operating License
. stage,'the Board will assure that the needed-changes in p'lant design can beJmade with the least ' possible cost and disruption to construction.
4
IX.
CONCLUSION The Shoreham Opponents Coalition contends that the Atomic.. Energy' Act of 1954, the National Environmental Policy Act, and public health and safety require:
(1) that a hearing.be held to determine whether good cause exists to extend the completion date in CPPR-95;
. (2) that.the Staff prepare a supplement to the Final En'rironmental Statement for SNPS; (3) that a Licensing Board revoke the SNPS construction permit, or in the alternative, re-issue-the permit subject to the conditions specified by SOC in Section III. of this Petition.
Respectfully submitted by f/
f Stephe,,B.
Latham c J 'm - =.- [
Joyce C.
Roop TWOMEY, LATHAM & SCIIMITT Attorneys for SHORE!!AM OPPONENTS COALITION 33 West Second Street Riverheatl, N.Y.
11901 (516) 727-2180 Dated:
January 23, 1981 i
~.
5 LONG ISLAND LIGHTING COM PANY SHOREHAM NUCLE R POWEll STATION i
e,o. sox eie, nonvH covNTmv mo4o. wAolNG M VER, N.Y.11792 November 26, 1950 SNRC-517 Mr. !!arold R.
Denton Director of Nuclear Reactor Regulation U.S.r 1r Regulatory Commission Wa shi' D. C.
20555 SHOREHAM NUCLEAR POWER STATION - UNIT 1 Construction Permit No. CPPk-95
Dear Mr. Denton:
Pursuant to 10 CFR 5 50.55(b), Long Island Lighting Company requests that the Nuclear Regulatory Commission extend the date for completion of the Shoreham Nuclear Power Station, Unit 1, from December 31, 19501/to March 31, 1983.
The extension is needed for a number of reasons which include:
1.
New Regulatory Requirements 2.
Evolving Interpretation of Existing Regulatory Requirements 3.
Late Delivery of Equipment 4.
Unexpected Difficulties in Completion of Required Plant Modifications These factors are discussed below:
1.
New Regulatory Requirements As a result of the accident at Three Mile Island and the subsequent investigation of that accident, a significant number of new regulatory requirements have been adopted or are in the process of being adopted.
Accordingly, LILCO has had to factor additional time into the construction' schedule to accommodate:
)
A.
the time required for the promulgation of final l
regulatory requirements;
.the reworking of systems where existing equipment B.
must be modified and/or replaced; and C.
the design, procurement and installation of new systems and equipment.
i l
ef See 44 Fed. Reg. 29545 (1979) l ATTACitMENT A O N ']
f S/ 20 2 0 cM
s
,Hr. Harold R. Denton Ret Construction Permit No. CPPR-95
. November 26, 1980 Page 2 significant new requirements include the Technical Support Center (TSC),
Facility (EOF). Post Accid qt Sampling Facility, and the Emergency Operations existing buildiags or the construction of new buildings.ach of th sampling capability and instrumentatior Additional to meet the functional requirements of these facilities.are also being developed development.these regulatory requirements are still in various stages of
- Moreover, 2.
Evolving Interpretation of Existing Regulatory Requirements Using all available guidance,NRC regulatior93 are primarily stated in gene LILCO and its contractors designed Shoreham such that, in their judgment, compliance with these general requirements was achieved.
In exercising its review with the general Commission regulations. responsibilities tLA Staff, In most instances, LILCO had been able to present sufficient information to resolve these Staff concerns.
In a number of cases, however, LILCO has elected to incorporate madifications requested by the Staff An example of such modifications is the addition of a naw system for loose parts monitoring.
3.
Late Deliver y M qu Qm gt in the completion of Shorcham. Late delivery of components has continue'l t date for the 480 volt LPCI motor generator (MG)A significant example is the the Staff's concerns raised during preparation of the Shoreham sets.
To address
caused the vendor's expected delivery date to be delayed f December 1979 until March 1481.
and hanger materials has slowed theThe unavailability of small bore pip completion of piping work in the Main Steam Tunnel.
The absence of this equipment delayed completion of the systems for which it is needed not only had an adverse impact on the completion of other efforts in the
, but it also area.
4.
Unexpected Difficulties in Completing Plant Modifications to meet regulatory requirements.There have been unexpected difficulties impingement,the Main Steam Tanizel were modified to meet NRC p to the original design effort.and separation criteria which evolved subsequent jet This work has proceeded more slowly than anticipated because of space constraints in the tunnel Additionally, resulted in secondary delays in electrical conduit ithe delays in c installation as noted above.
1 instrumentation I
u.
Mr. ' Harold R. Denton
' November '2f,,
1980 Re:
Construction Permit No. CPPR-95 Page 3 Another example of the unexpected difficulties in completing the construction effort is reficcted in the r.otor control centers /
cable / conduit design and f...sta11ation difficulties resulting from the imposition of final pipe break analysis criteria.
LILCO has, wherever possibic, made acheduling and administrative changes to compensate for the unanticipated delays described above.
The net result, however, has been to extend the expected fuel load date.
We reported to the NRC Caseload Forecast Panel in May 1980 that the plant would be ready to lead fuel between June and September 1982.
Our current project plans establish a May 31, 1982 fuel load.
Accordingly, and in order to provide a suitable margin for the completion of Shoreham, it is requested that the latest completion date be extended from December 31, 1980 to March 31, 1983.
Very ruly yours, J.
P. N varro, Project' Manager Shoreham Nuclear Power Station RH/cc cc.
Mr.
B. J. Youngblood, Chief, Licensing Branch No. 1 W
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M EXHIBIT 1 SubMER AND WINTEH PEAX LOA S 968 1997) 4 4
a-s SUhWMO: INDIVIDUAL COMPANY PEAK DE NDS AND TOTAL NEW YORK STATE COINCIDENT PEAK DEMAND l
(in Megawatts)
's
.I q
Central Consolfdated Niagars Oran9e &
Total Hudson Edison LILCO NYSE&G Mohawk Rockland PASMY RG8E N.Y.5.(1) 1 ACTUAL f
1%8 441 6530 1860 1107 3855 381 745 648 15499 1969 479 7266 2004 1182 4030 434 777 708 16716 1970 512 7041 2174 1276 4169 476 788 762 17037 1971 540 7719 2401 1343 4300 524 807 790 18146 4
1972 566 787.'
2620 1424 4392 579 798 855 18943 4
1 1973 633 8220 2923 1583 4724 640 902 922 20408 j
1974 585 1973 2794 1501 4581 610 949 880 19589 1975 597 8051 2933 1565 4601 646 901 925 20001 1976 535 1579 2719 1578 4696 609 999 925 19262 1977 622 7193 3107 1700 4878 706 2257
?87 21214 FORECAST 1978 640 6900 3030 1750 4990 695 2485 1030 21210 1979 650 6925 3140 1820 5110 720 2603 1080 21690 1980 675 6975 3260 1890 5250 750 2650 1120 222C0 1981 705 7025 33E0 l'390 5410 780 2778 1160 22770 1982 135 1100 3500 2090 5560 815 2860 1210 23400 1983 765 1175 3590 2200 5730 850 2957 1260 24050 1984 800 7275 3110 2310 5900 885 3052 1310 24750 1985 835 7375 3830 2420 6080 925 3193 1360 25510 1986 870 7500 3940 2540 6270 965 3297 1410 26260 1987 910 7625 4040 2670 5460 1005 3475 1470 21120 1988 955 7775 4140 2800 6660 1050 3593 1530 27940 h89 1000 7925 4230 2930 6860 1095 3683 1590 28740 1990 1045 8075 4320 3060 7080 1145 3795 1650 29580 1991 1095 8225 4410 3200 7270 1175 3870 1720 30380 1992 1150 8375 4500 3360 7500 1205 3852 1790 31210 1993 1210 8525 4590 3520 1720 1235 4023 1870 32050 1994 1270 8675 4680 3680 7950 1265 4096 1950 32910 1995 1330 8425 4760 3840 1190 1295 4173 2030 33760 1996 1395 9000 4840 4000 G430 1315 4251 2120 34660 1997 1400 9175 4920 4180 8680 1335 4336 2210 35590 1998 h30 9350 5000 4360 8940 1360 4420 2300 36530 4
(1) Total New. York State includes the Villa e of Freeport and the City of Jamestown in addition to the evters of the New York Power Pool listed above. Beginning in the surmer of 1979, the load for the V11149e of Freeport has been included in PASNY's load.
Beginning in the Suaper of 1981. PASNY has included the City of Jamestown in its load.
16
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EXHIBIT 1 SUMMER ANDW NTER PEAK LOADS
~
r, 4
SUMMER INDIVIDUAL COMPANY PEAK DEMANDS AND TOTAL NEW YORK STATE COINCIDENT PEAK DEMAND (in Megewstts)
AGUAL M_
23 M MD121 L.1LLQ tiDLMs
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.06ft pAsNyi2) h GF. h ti!)1 1970 S82 7048 2174 1270 4169 474 7se 7 b2 17 1978 S40 7789 2401 134J 4J00 b24 607 790 is tw?2 bbe 78 72 2b20 1424 4JU2 679 796 eSS lo 1973 633 H220 2923 ISNJ 4724 040 902 922 20 1974 Sbb 79 7J 2 794 lb04 4 Set 080 949 680 19 1975 b97 80ba 2 9J3 lbob 4601 646 901 92S Fu 8976 bJb 7379 2719 IS75 4690 609 949 92b 19 1977 042 7893 3807 1700 4878 F06 2257 957 21 1974 414 6714 2997 4729 SCO2 602 234s 983 70 tw79 620 67C2 Rwl9 4700 4m80 6e2 2354 942 20-LQkLLh;J.
19 0 640 6900 2 96S lobo 6010 70S 2447 10Jo 21; 19e8 6bb 6900 J 004 8920 bl40 740 2 S JS 10b0 21t twe2 600 6900 J050 2010 Sd60 Fbb 2003 1080 22(
1953 bbF 6900 J100 20h0 belo 77b 2899 1100 22e 49e*
OVW 0900 JISS 2150 SbJo 795 2469 1830 2 28 tweS 690 0900 J22S 2220 b6bo uth J064 lib 0 2 Ji 19ae F02 6930 JJ10 2300 b770 640 JIJ4 1200 2J; 1907 73b 0970 J405 2300 5900 eFO J240 adJO 24s Ivue 7kV 7020 Jeb0 2400 6040 b9b JJo9 8270 243 1959 74b 7000 JSob 2340 0850 925 JbO2 BJ10 2SJ 1990 702 71h0 J o7S 20J0 bJ10 vbb Jbor
!J60 25t l991 700 72JO J7Sb 2720 6440 980 Jo40 1390 26J 1992 799 7J10 J B2b 2810 bbb0 8000 JF05 1440 26d 199J ulv 7400 J 68S 2900 0F20 102b JFoo lado 2 FJ 8994 UJV 7b00 J 940 J000 6500 804b 3831 8520 2 79 19wb bb!
7600 3990 J800 7010 1000 J9hl Ib60 2&S 4!) T O T A L NL W YuRat STATt I NC Luut h THE VILLAbt OF FREEPORT AND THE CITY (.F J ANL b f Gr N IN ADDIT 40N TO tnt MEMuERS UF THL Nts YOR%
PuntH Puun., AlSitD A O LN L e utGINNING IN INE WINTER OF 1962-dJ. PAbNY nab I NL.L u DL u itt. 02TV OF JANLb70WN AND tnt VILLAGt OF FHttPURT IN ITT LUAU (2) utLAux or uMot>< T AINilt h CONCtkN INu tnt. FUTURh PLANb OF tnt uhdA N Ot V t L OPMEN T CONPUN AI!ON A LAJC I. 1T 1b NOT FHLblitILY CLt AH Tu sNA1 taitNI I I S LUAUS NAY ut SERytD SY THE Pu stR AU THUM I TY ANO/OR LONSULj DA T L D LO IS'.78.
CONStoutNTLY. LUADS UP UDC HAvt utLN INC=uutu IN TNL IkalVIOuAL LOAD FONECAbib BLGIMNING IN t w ow (.7 08)TH OF TNtht ullLITIth. TOTAL LUAOb FON TNL NEW YONA Pustee PLAM, NAVL HLE N ADJubitD TU PROVIDE FOR INL.L US l uN Lif u D(, UNLY (Atte. (D6 A biAltWIOt tl AS i b.
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EXECUTIVE OF F ICE OF THf i'HE540EN T CCUNCIL CN tNVICor4Mt A rAL QU ALsf y 721 JAcMO** Pt AC 8 h
- WASHrNotos, O C Fome.
-- - -e August 12, 1980 Honorable Tyrone C. Tahner Attorney Ceneral State of Illinois Chicago, Ill.
60601
Dear Attorney General Tahner:
The Council has reviewed your office's lettet, dated May 27, 1980, agarding the application nf the National Environmental Policy Act
("NEPA") to the future decisions concerning the Bailly Cencrating Stat ion, Nucicar-1 ("Bailly-1").
Our review of the matter indicates that for Bailly-1 was 1s;ued on May 1,1974. the initial construction permit Since that time virtually no Pursuant to the intent of the Atomic Energy Act, construction has tak unless the permit is extended by order of the Nuclear Regulatory Commission ("NRC"),
Northern Indiana Public Service Ccapany ("NIPSC0") will forfeit all the rights to construct Bailly-1.
Your office has suggested that there have been certain significant new developments since the final EIS on Bailly-l's issued.in 1973, such as:
- enstruction permit was 1.
3975) and its reevaluation by H. Lewin'The issuance of WASH-1400, t
Croup in NUREC/CR-0400 (1978).
R!$k Assessment. (October, Review 2.
The accident at Three Mile Island and the subsequent of the accident, studies including the Report _by the President's Cvemission on The Accident At Three Mile Isinn_d_, and the report of the Special Inquiry Group to the Nuclear Regulatory Commission.
3.
The September 26, 1979, NRC memorandum from R. W. Houston Chief of the NRC's Accident Analysis Branch, to Daniel P. Muller Acting Director of the NRC's Division of Site Safety and Environ-mental Analysis, indicating that the Bailly-1 facility failed to meet proposed siting criteria contained in the report of the NRC Siting Policy Task Force (NUREC-0625)(1979).
t 4
The Council's letter of March 20, 1980, to the NRC and the Council's report entitled, NRC's Environmental Analysis of Nuclear Accidents:
Is it Adequate?
In our letter of March 20, 1980, to revise its policy on accident analysis in environmental impactwe urge c y The review of NRC EISa by the Environecutal Law Institute for ments.
state-i ATTAC104ENT D
~g
a o
N Coun'cil had revealed that none of the EISr. prepa'ed to' date by the 3
r NRC for land based reactors has included an analysis of what were forrerly known as " Class 9" or worst case accidents.
'a'e s t a t ed our c~,:iusion that the NRC's ne's e~tdent analys ts policy should require discussion in EIS's of the environ..aal and other consequences of the full range of accidents that might uccur at nuclear reactors, includi core melt events. Such analyses,we noted, could iciprove the Commission a siting, design, licensing, and emergency planning decisions.
On June 13, 1980, the Consnission published a new Interim Policy for the consideration of environmental consequences of nuclear accidents under NEPA. The NRC coacluded that there is a need to include in EISs a dis-cussion of the " site specific environmental tir. pacts attributabic to accident sequences that lead to releases of radiation and/or radioactive materints, including sequences that can result in the
. melting of the reactor core."
45 Fed. Reg. 40101. The Interim Policy was ambiguous on whether supplements must be prepared for existing EISs that have already been issued for construction permits.
Ilowever, the Commission stated:
"... it is the intent of the Commission that the staff take steps to identify additional cases that might warrant early consid-eration of either additional features or other actions which would prevent or mitigate the consequences of serious accidents. Cases for such consideration are those for which a Final Environmental Statement has already been issued at the Construction Permit stage but for which the Operating License review stage has not yet been reached." 4 5 Fed. Reg. 40101, 40103.
The NRC acknowledged that substantive changes in plant design features as a result of such analyses "may be more casily inn.aorarad in plants when construction has not yet progressed very far."
Id.
As indicated in the memorandum enclosed with this letter from our General Counsel's Of fice, in determining whether to act to extend NIPSCO's construction permit, the NRC's responsibilities under the Atomic Energy Act are supplemented by the Nat*onal Environmental Policy Act.
NEPA requires the NRC to consider environmental factors to the fullest extent possible in its new decision about Bailly-1.
The Council is of the view that for this decision, the NRC may simply adopt all or portions of its prior final EIS pursuant to 40 CFR (1506.3 and prepare a supplement dealing with the developments indicated above. Consideration of this new information might indicste, among other things, the need to modify plant design, select an alternative site, implement certain emergency preparedness measures, or reconsider the construction permit altogether.
stated by the U.S. Court of Appeals for the Second Circuit:
As "Although an EIS may be supplemented, the critical agency decision must, of course, be made after the supplement has been circulated,
~
u 7. ;
~ --
'3
~
y-considered and discussed in the light of alternatives, not before.
Otherwise, the process becomes a use lens ritual, def eating the purpose of NEPA, and rather making : sockery of it."
NRDC v.
Ca11 sway, 524 F.2d 79, 92 (2d Cir., 1975).
In summary, the Council has concluded that the NRC should prepare end circulate a supplement to the EIS on tne Bailly-1 cor.struction permit prior _to rendering a decision on the pendinr, request for a permit extension. The NRC must also issue ti record of its new det.!sion in
-. compliance with 'O CFR $1505.2.
By a copy of this Actter, we are providing, our conclusions on this issue to the NRC and N11'SCO.
Sincerely.
1 GUS SPETil Chairman Enclosure cc: Members of the Commission President'sf N1PSCO
-O c
November, 1980 Shorcham fluc] car Project Report Page 3 (14) Subsystems' packages were forwarded to the Start-Up Organization by the end of P vember.
Ilowever, due to ' the
-large number of punch list items, an evaluation of the testing schedule on these systems resulted in a delay of final. sign of f and no systems were actually turned over in the month of November.
By m!.d-December cloven _(11) of these systems have been turned over, and are available for C&IO testing. 'The RHR Systems (EII), which is an integral part of ' the Integrated Systems Flush, was written to Construction Jurisdiction for completion of punch list items for FQC Inspections.
G ATTACEMENT E
n.
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SimC-923 De ce:r.be r 22, 1980 1'r. }!arold R. Dcnten, Director Office of Nuc.lcar Reactor Renu 3ation U. S.1:u:1c:4r Reculatory Cor.:niscion Uachinct:n, D. C.
20555 SUOREHAM NOCLE/,R PO'!*:R ST/ TIO!1 - UNIT 1
- * ' ' ' ' ' ' ' '
- T;0 C G 'T 3 : 0. 50-322 Daar 1:r. Drnton:
Uc certainly appreciated the o; portunity to talk uith you on hettber 16 ;h about L!LCO's nucle. r pror,rari.
u.ts particulally uneful for ne in my neu role at the Company.The tectint copy of Ch:1rtan /.he:.rne's firnt r.cnthly ntat us r.'rortSince retur Bev113 Sut r- ::ittec, c:ated November to the 21, 1930.
The report ' a
' rc a t r.3 r.: of Shorcha:r. canc an quite a shock.
It proj eci.::
the follerir.g dater:
Shoreham SER 6/81 ACRS SER Juppictent_
7/01 9/81 Henr$ng Sta:'t 1.1/G1
~{ w v4 Hearing Completion 3/02
/.SL!) Decinion 6/82 OL Issuance 9/02 the dr.t c for innuinr, a Shorchan Sim./,r. you knou, your Staff had schedu. l The preparr.t ica 31t erally for yearn -- the rirnt.docut.:nt ht.n been under f; r 1:n appearance 1:an l' arch, 3 977. of r.any r.uch Starr nrhed :3 e:
Acco'd'or.ly, we u re d' n'- ec,1 1.o re ad.in the ik v13 ] repert that the "* li :tpr' earn 1o P ve r.. nly r.13 pped nix tore mont hn, f ro'n l\\'ccr:1+ r, 191!D t o lun.,
1- 01.
It * :. di ff! cult ;o under:tind t.hy.
1 : ve n 'W,1, which }re.
- cd 1: hat t hen r ee::.e d 1.n be n i no:.1 certain 1:. :u:uice I h e f"., in.:p rinr. 3 9 79, i t. n o u,: 0 :n t h h :, p :n : t.
e.
D %"Q so a s in\\ 6 ATTACIDtEMT F r
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)le ucre also surpriced to see the Devjl3 report's sucr'.:.tiin t hat henrinr.:: for "P.oreham would run cnly frcn 1; o v e.'. e :*, 1 9 f: 1 to l'. arch, 1982.
Firrt, thone partj eular r:onths incl.;de a lot of unavoidabic holidayr..
Se c':n d, t h e nos t inp:.rt nnt, past er.perlence prec3u:Ic:. pinnning for the Shorchat hear *ncs '.n the anr.u:npt.ica that they uill nove so briskly.
thorehar':. OL proceedinr, has 1:cen noving alenr already for alte::t fi v-years.
It involve:. several well fund"d part.ies who are hcstile to the plant, represented by e ffec.! ve counrel and' techr.ically a:: isted by !?.3, Inc, un d EP.G.
Ir ance effort has Conc, and continues to go, into discove ry, ner.c tiat ion,
stipulatien, and su::r.ary disposition.
As a result, there are feuer contentions still to be litigated than vou' d otherwise have been the case, and those that remain af ter coing through the But wh'.:n discovery procces are better particularined than usual.
n)) is r.Eid and donc, there will still be numerous d1Tricult issues th.t can be resolved only after bitterly contested hearinns.
Irr:!spective of what may be true in most other parts of the cour.t ry, it is crucial to recognine that nucle.'" h arj nps on Lung Isi:.nd take time.
The AEC hearings on Shore! "';. Cp dra re d en for 70 days over a 2-1/2-ycnr period, and a corpm. ion !!eu Yor: St.:.te proceeding lasted 21 dr.yr, in 3 9 /1-72.
She ?!RC's evidenti;ry sessions on Jamer, port's CP covered 4'i days over a ten nor. ;.1 period in 1970-77, while the con:panion !!r.: York State proceeding ran for 123 days from October,1974 to Septemher, 1977.
There is reasen to believe that the Shorehn:- OL hen:inr,c may nove more quichly than past, nuclear ressicus on Long Island.
But in lirns of past enperience it would be u:n:ise to accute for p]anning purposes that the heartnr3 ui)1, in fact, cove nore quickly.
Thus, we strencly urge th'.t the Staf f not a n r.ume t h at t he Shorchar Eli c an be s a f e ly de lay e d t o J t.n e, 19G1 in rellr:ce on r;uick bearings in late 1981-early 19 Ei?.
13 0 n o un d b a r. i n c.s. i s t :
for any such assm.ptic'n.
The SEii is nee ded nfw, i f all con ce rr. d are t o have a renco:iabic ch:.nce t o finish the Oh proceeding c:.co or less by the tir.:c Shoreham is ready t o load fuel.
In this ref.ard, it really doer, matter that Chorehan's licensinr,not J ar. behj nd i t:. connt ruc t. ! cn.
Seven yearr af ter th.
3 !. :r 3 A: b c i l v:"b sr r.o, Lil.CO': r.ene ra t i nr. capaci t y rer:a i ne tet.:) J y oi)-firc.1; t he Con;ony cont inuca to pres!nce bareload a:. uci j a:
$ n t er:
t' ate and pe 1:!ny, peus r uit h 01 ~l.
And of t!nt oil, well ov. r !:. l Ar Jr.po:tnl.
Ar. a re.. ult., 1,' hPO ' :. nyritn 1: :. t i j 1 c.x ;
.e d t o t he s:h t:. of int i enat ion:il el) 1.ol i t. l e.
The 11.. ". t.a l s o c,
(..
p :y: :n - 1; r..r.ened by t he 1 11110n: of dollar t.h il tie-C,
- n. ny
- a: 1 1 :. tc r.-
1; 1 onf.utrI1er A: d ). l l.Gi's e i n. U.:..c.
ui py ter very c=;cn,"se o ! ).. f i rt ti e l e ct r i v i t.y.
~
U S:.
- ~ 1;. f. :.t c.n, Mr.:eter w
~
y.:.rev s
/
\\l hen the Fhorc!.Pnil ue 2 ear !N tt v !: tat.t c.:.1 e. ybynjc.11y I)} 23trlally
. smd : J ra):" : ready to 0;'cr":' e, t!a :~ 3 t "" ' f n U i
/
- 6.. g
,e.. u : *. : w:11 d : ;.I ac<* 1: > 000 000 i
3....... o..
.m.u2.......
t,.
v bars els of oj l esch yea", savir.;*. over C:'LO,000,00:i in fuel cc:.t. t.re..:.12y at today 's pri cen.
1/.n j n obvj oun from 1 y colt.:ent.:. no far, L!LCO is incren -
reatly to ]ead ingly cor. crn::d that the pl:.nt uill be p:ycical);'
n.el te rcr e t r.c con clu:.i'.n o f its - Oin :" *..' r.r Ll ce: "" pro cee d3 n ;.
p it.nt r::<. c t s tlr.cn th:. ;;recceding doce ultir at ely find that th' all-r: lev:.nt require::.cntc, an we bc3 J eve 1t. will, then pointlene harm vill hnvc been done to national cuert.y policy and to-LILCO'n custo.ers if tho' plant has been kept off line ::1 ;ily t.ccauce a licenring proceeding begun in !~. arch,1976 has yet to find its way to a conclusion.
An SER for Shoreham is canential to cettinc on with the The is;;cncy, L*L'/0, and the publ! c woutrl n11 p3snt's liecnsing.
bene fit from the docut:'nt's ir adiate n"r:: aran ce.
Un t.'.1 i t 1:cf.in to be tad abet:t uhrther appe.$.r:, finr.1, 'de cinions ' cannc Shoreha:t is cor.patibic with the pubj j " hen:th :nd : ;r ty, tm:! thus re t.dy.
whet':.er it 'thculd be allowed te cpernte cace phyr.ical;y 1:e very y.uch hope that the I:ev!11 re: <>et. 1:. not iradic:.tive of ycur t"uc p"iority for Shersham.
1-le a J r.o ve ".. ! men hope tht.-
in 1L rharch-
"... and
- .cour..co you c'13 tche a.personr.1 int er. nt t !.e n. -:t fe your 8:s rf to cer.plete r.nd isru. the < ! s. :' * : n '. L ' ' -
wec;;s.
If further meetincn ui'.h LII J cc c a ur r.; :N I t o you in un:. r-ctand'.nr our concerns, we will be there at your wnv ::lence.
Very truly yeurn,
'.ll%::t/.'i. 'A/.4./!*.'.Y-t
!!131ned S. P: 1)och Vice h+sj dent -:Juejear lion?pabic !!O" nan F. Lent cc:
1:e r.s rp. 1-l, 0. Ilh1 '
J. t!. Dy e, J r.
- 1. l..
Fr011jcher
- 1. II. l'aPret t
!!. A. 1:i'uarda J. V.1 Ovaero
- 7. Ih v01ey S l t.' i.:' t. 010 D
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- [ 4e**ee.b, s
E,. g.,
Ij UNITED STATES
{.'
NUCLEAR REGULATORY COMMISSION s
,usmorou. o. c. :esss JUN' 3 1990 Docket No.
50-322 APPLICANT:
Long Island Lighting Company (LILC0)
FACILITY:
Shoreham Nuclear Power Station
SUBJECT:
SUMMARY
OF CASELOAD FORECAST PAtiEL SITE V Panel at the site 'of the Shoreham Station on May 8 orecast tion of those plar.ts nearing completion and to e
, 1980.
The purpose of jected construct <on completion date.
n s pro-The lisc of attendees for the meeting is shown-in Enclosure 1 A copy of the meeting agenda and the presentat The memoers of e their name.
provided in Enclosure 2.
y Lilco is Ouring our previous Caseload Forecast Panel meeting in Janua cant stated that the Shoreham Station was 78 percent complete in
, the appli-and they forecast a fuel load date of June 1980.
, 1978 applicant stated that the Shoreham Station was 80 percent cc At this meeting, the earned manhours) on March 31, 1980.
31,1982 2nd Lilco's forecast for fuel load at S completion date of May e on is June - September,1982.
reasons for the 2 year delay were delays in the turnover o orehui construction group to the preoperational testing group and an u ems from the by Litco of the total accunt of work required to complete the Sho n
reham Station.
We evaluated the applicant's present status of construction a d mation to predict a fuel load date based on our experience with con n
times at other nuclear stations.
used tha t infor-We identified three potential problem areas truction with regard to LiLeo's schedule.
interface between the construction scnedule and the preop Lilco stated that they would complete the master schedule in June s scheoule.
apolicant is only alloting 16 months for comoletion of preope
, 1980.
(2) The (3) Litco's schedule assumes a significant increase in the rate of construction s
ATTACIDENT _G p
YOOg 0 0 0'i
s _
r Meeting Sumary
- JUN 3 1980 turnovers. However, the Shoreham schedule is based upon.a 40 hour4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> work week, with overtime and shift work availabie if necessary.
Therefore, based on our review, we concluded that the Shoreham Station would be ready to load ~ fuel in September, 1982.
30 ]
D
)
2
/
ll6
'O t
erry. Wilson, Project Manager Eic sing Branch No. 1 ision of Licensing
Enclosures:
As Stated cc:. See Service List
..y..
.c.-
~.
.,-.._s s
Fcbrunry 4, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Director of Nuclear Reactor Regulation In the Matter of
)
Construction Permit No.
LONG ISLAND LIGHTING COMPANY
)
CPPR-95 (Shoraham Nuclear Power Station,)
Unit 1)
)
s Permittee's Response to SOC Pleading of January 23. 1981 I.
'On January 23, 1981, the Shoreham opponents Coalition (SOC) filed a 31 page document entitled " Petition of the Shoreham Opponents Coalition (SOC) to Institute Proceedings on Whether Good Cause Exists to Extend the Completion Date of the Shoreham Nuclear Power Station - Unit 1."
Although denominated as simply a request for proceedings on the Per-mittee's construction permit extension request,l/ the petition asks for much more.
It seeks to have "the Shoreham construc-tion permit suspended" and then " revoked" or "in the alternative, re-issue [d]
subject to... conditions Neither the request for a hearing nor the attack on the CP is meritorious.
1/
y a request dated November 26, 1980, the Permittee B
asked that the latest date for the. completion of the Shoreham
. plant be extended from December 31, 1980 to March 31, 1983.
APPENDIX C
QW P & O f hh l
n,-
2 II.
SOC's. petition requests that a proceeding be ini-tiated to determine whether good cause exists to extend the latest completion date in Shoreham's CP.
As noted before, a request for such an extension, accompanied by the requisite showing of good cause, was filed by the Permittee on November 26, 1980.
At this stage, SOC's petition is no more than a request that the NRC issue a notice of hearing and constitute a licensing board on the CP extension request.
Presumably, if a hearing is noticed, SOC will petition to intervene and the Permittee will have the opportunity to respond but such time co...uming procedures need not take place.
The Staff can and should grant LILCO's CP extension request now without issuing a notice of hearing.
In the past, the Staff has routinely issued CP extensions, where merited, without prior notice of hearing.
The practice was, and remains, legally permissibleS/ and practically sound.
To deviate from the established routine would, in our opinion, create an unnecessary and harmful precedent.
The groundwork would be laid for expanding every 1/ The Permittee is aware of the decision in Sholly
.v.
NRC, No. 80-1691 (D.C. Cir. Nov. 19, 1980) but the case has no present legal effect since the court's mandate has been stayed until February 10, 1981.
been filed in that case.
A petition for rehearing has 1
j
-future CP-extansion request'into an intermediate licensing proceeding.
And plants might be subject to several of these such proceedings in the coursa of their construction.
Our fears are rooted in the lack of reasored grounds upon which to base such a departure from the norm.
As ex-plained below, SOC (1) fails to challenge LILCO's showing of " good cause", (2) raises Shoreham specific issues that should be litigated, if at all, at the OL stage, and (3) raises generic issues entirely inappropriate for a CP exten-sion hearing.
Thus, there is nothing in the petition that is even arguably the proper subject of CP extension hearings.
Most notable is the irrelevance of SOC's petition to the issue at hand.
LILCO's letter asking for an extension of Shoreham's CP cired specific reasons for the inability to comolete construction before December 31, 1980.
Those reasons are a prima facie showing that " good cause" for the issuance of a CP extension exists.
But nothing in SOC's petition challenges that " good cause" showing.
SOC baldly states that
" good cause" does not exist and then totally ignores LILCO's explanation.
Instead of addressing relevant questions, SOC reaches into its bag of favorite issues hoping that one will fall on a sympathetic ear.
(.
^
- SOC's allegations encompass Shoreham specific and generic issues.
The former--issues related to Shoreham's FES and LILCO's financial qualifications--are all ones that should be litigated if at all, at the OL stage.
It would make no sense to open up a new forum for these issues only months-away from the start of OL hearings.
And, we think, no Board sitting in'a CP extension hearing would entertain such a notion.
This is not the Bailly casell where con-struction had yet to start when & CP extension hearing was noticed.
Shoreham is approximately 85 percent complete.
The OL proceeding has been underway since 1976 and~only an
.SER is needed before the OL hearings begin.
The other issues SOC tries to rely upon are broad generic issues--difficult policy questions that every group opposing nuclear plants would love to be able to engage within the framework of adjudicatory proceedings on CP exten-sion requests.
SOC merely seeks a forum to air vi.ews more appropriately considered elsewhere.
If the NRC gives a measure of legitimacy to SOC's ploy by noticing hearings in the Shoreham case,. it will have no logical basis for declining to do so in other cases.
No issues have been raised that would prevent you from finding both (a) " good cause" for an extension of Shoreham's 1/ Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-619, NRC (1980).
l
.i l
j l
g, CP and (b) "no significant hazards consideration" involved in granting it.
Therefore, you should issue the Shoreham CP extension now without prior notice of a hearing; an action that you legally have the power to take.
III.
To the extent you perceive that SOC's request for the suspension, revocation or amendment of Shoreham's CP goes beyond the scope of the hearing request, it presumably will be considered by you pursuant to your authority under 10 CFR S 2.206(a).
LILCO opposes SOC's attempt to terminate or alter the effectiveness of Shoreham's CP.
A request under 10 CFR S 2.206 for a show cause order "must identify a significant unresolved safety issue or a major-change in facts material to the resolution of major environmental issues."
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
DD-79-10, 10 NRC 129, 130-31 (1979).
But such a petition must not be used to seek reconsideration of issues already decided, issues that are properly within the scope of operating license proceedings, or issues that are more appropriately considered in other forums (e.g., rulemakings).
Cee Public Service Company of Indiana (Marble Hill Nucicar Generating Station, Units 1 and 2), DD-79-21, 10 NRC 717 (1979).
Given these' guidelines, the Permittee believes a careful reading of the petition shows that the issues raised are not properly considered in a i 2.206 proceeding or so. insubstantial that you would be justified in summarily denying the request for a show cause order.
And we urge you to do just that.
If, however, you elect not to;act immediately but rather to investigate the factual allegations further, LILCO would like the opportunity to submit a detailed response to the petitien.
While 10 CFR S 2.206 does not provide for pleadings in response to petitions of this sort, it is established that Permittees may submit comments if so desired.
Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), CLI-78-7, 7 NRC 429, 433 (1978); Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), DD-79-22, 10 NRC 728, 729 n.1 (1979).
It would seem that if you feel it necessary to go beyond the face of the petition, a response by the Permittee would be helpful, if not essential, to the inquiry.
Lacking specified time limits for the submission of comments, LILCO requests until March 1, 1981 to respond.
IV.
SOC has presented no factual basis for either (a) its request for a proceeding on the Shoreham CP extension T
~
7 7
request, or (b) its. request that Shoreham's CP be suspended, revoked or amended.
With respect to the iormer, the require-ments for issuance of a CP extension for Shoreham have been met.
To delay because SOC wants to litigate issues unrelated to the extension request would set the precedent for fruitless litigation in a myriad of other licensing cases.
If the NRC believes the extension request is meritorious it ought to act promptly.
As to the latter, if the Director does not decide to deny the 10 CFR S 2.206 request immediately, LILCO requests until March 1 to submit detailed comments on e.he allegations made by SOC.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY r
W. Taylor R ley, III I
Anthony F.
riey, Jr.
'y,f Hunton & Williams P. O. Box 1535 Richmond, VA 23212 Dated:
February 4, 1981 w
e
r~,
, _ o l-In.the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station. Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copies of PERMITTEE'S RESPONSE TO SOC PLEADING of JANUARY 23, 1981 were-served on the following by first-class mail, postage prepaid, on February 4, 1981:
Harold R. Denton, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C.
20550 Stephen B. Latham, Esq.
Twomey, Latham & Schmitt 33 West Second Street P. O. Box 398 Riverhead, NY 11901 Bernard M. Bordenick. Esq.
U.S. Nuclear' Regulatory Commission Washington, D.C.
20555 Secretary U.S.'Nuclec Regulatory Commission Attn:
Chief, Docketing and Service Section Washington, D.C.
20555
. $ L k l.n[. ti.
AnShony F.
M ley,7r.
,f Hunton & #1111ams V
707 East Main Street Richmond, VA 23212 Dated:
Febr 1ry 4, 1981 hanised =
s Fcbruary 27, 1981 UNITED-STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Director of Nuclear Reactor Regulation In the Matter of
)
Construction Permit No.
LONG ISLAND LIGHTING
'ANY
)
CPPR-95 (Shoreham Nuclear Pow - Station.)
Unit 1)
)
Permittee's Opposition to SOC's Request that Shoreham's Construction Permit be Suspended, Revoked,or Modified I.
On January 23, 1981, the Shoreham Opponents Coalition filed a document entitled " Petition of the Shoreham opponents Coalition (SOC) to Institute Proceedings on Whether Good Cause Exists to Extend the Completion Date of the Shoreham Nuclear Power Station - Unit 1."
As noted in the Permittee's response of February 4, 1981, SOC asked for (1) a hearing on LILCO's request for an extension of the Shoreham construc-tion permit and (2) suspension, revocation or modification of Shoreham's CP.
LILCO urged you to deny both of SOC's re-quests.
With respect to the latter, the Permittee also asked for an opportunity to submit further comments in the event that the 10 CFR S 2.206 request was not immediately denied.
Since a denial of SOC's petition has not appeared, the Per-mittee expands briefly upon its opposition to the ictuance of a show cause order.
t O
gg em m yp o
jug J
s' APPENDIX C
- f & o f:
-~
g Q c, w%
g)O 3d3431 &
0
. i II.
Stripped to its essentials, SOC's 10 CFR $ 2.206 request is an attempt to circumvent the NRC's two-tier licensing pro-cess by raising issues in a show cause proceeding that are more properly dealt with in the Shoreham operating license proc 3-ding.
In its attempt to have Shoreham's CP suspended and then revoked.
SOC challenges the adequacy of the final environmental statement for Shoreham, LILCO's financial quali-fications, the safety of the Shoreham site and the ability of the Permittee to meet the NRC's new emergency planning regulations.
SOC alternatively asserts that if the CP remains in effect, the safety of the plant will be compromised unless the permit is modified.
Specifically, SOC wants to incorporate conditions that would require (1) LILCO to document deviations from the Staff's Standar d Review Plan, (2) the NRC to analyze the safety impact of the deviations and (3) LILCO to perform certain analyses and design changes that are said to flow inexorably from.the accident at TMI-2.
All the above are precisely the types of issues routinely raised in operating license proceedings.
And because this is so, they are not properly the subject of a 5 2.206 request.
As the Commission has noted, a proceeding under 5 2.206 is not "a vehicle for avoiding an existing forum in which [ issues] more logically w
. ~ hould be presented."
Consolidated Edison Company (Indian s
Point, Units 1-3), CLI-75-8, 2 NRC 173, 177 (1975); see also Public Service Company of Indiana (Marble Hill Nucicar Generat-ing Station, Units 1 and 2), DD-79-21, 10 NRC 717, 720 (1979).1/
SOC has not made a convincing showing of special cir-cumstances to justify deviating from the Commission's two-tier review process.
SOC's apparent reliance on Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-619, __ NRC __ (1980), is not persuasive.
.The circumstances of that case are wholly different from those at hand 2/
The lack of special circumstances in this case is further indicated by a quick review of the issues raised by SOC.
III.
Final Environmental Statement.
SOC argues, first, that the Shoreham CP should be revoked because of alleged 1/ The fact that the CL proceeding is the proper forum for SOC's complaints does not mean that these issues will actually be the subject of a hearing.
It is up to the Licensing Board to datermine the issues to be litigated, pursuant to all relevant criteria.
2/ In Bailly, the Appeal Board indicated that the availability or the OL proceeding would not prevent conside-ration of site suitability issues in a 5 2.206 request where construction had barely. started.
In stark contrast Shoreham is approximately 85 percent complete and the OL proceeding
-has been underway since 1976.
u
4
. inadequacies in the final environmental statement fer the plant.1/ - But SOC raised each of the claims relied on here
-- costs, need'for power and Class 9 accidents -- in its petition for intervention in the operating license proceeding.
" Petition of the Shoreham Opponents Coalition (SOC) to Sus-pend Construction Permit to Renotice Hearings.
. or to Permit Late Intervention.
. " dated January 24, 1980, at 53.
In response to SOC's petition for intervention, the Licensing Board dismissed the claims related to the FES because the issues had already been addressed and no rele-vant "new" information was cited.b/
Board Order of March 5, 1980, at 22-24.
SOC petitioned the Board for reconsideration.
" Response of the Shoreham Opponents Coalition (SOC) to Board Order Dated March 5, 1980," dated April 3, 1980, at 11-15.
The Board found no reason to reopen the environmental phase i
2I SOC's argument is not entirely clear since it confuses
~
the alleged need to produce an environmental impact state-ment in conjunction with issuing a CP extension with the asserted need to revise the existing FES because of purported deficiencias.
The former "need", of course, has nothing to do with the $ 2.206 request.
b/ The Board did find chat the TMI-2 accident was a development that mighc ordinarily justify reconsidering Class 9 accidents but concluded that such was not warranted under Commission policy.
That continues to be the case as
)
to Shoreham.
See " Statement of Interim Policy on Nuclear Power Plant Accident Considerations Under the National En-
't vironmental Policy Act of 1969," 45 Fed. Reg. 40101, 40103 (June 13, 1980),
i
T of the case.1/
Board' order of May 1, 1980, at 6-8.
Now SOC comes to the Director seeking to collaterally attack the Licensing Board's decisions and thereby obtain a result twice denied.
Obviously, if SOC feels that new developments justify reopening the environmental phase, it may once again approach the Board.
Failing there, its proper avenue for complaint is the NRC's appellate process.
Factually, this part of SOC's petition is also undis-tinguished.
Aside from the usual but largely irrelevant patter about Clasr 9 accidents, SOC rakes some generalized assertions about the cost-benefit balance.
Declining load growth is cited without any consideration of other aspects of the need equation, principally oil displacement.
SOC's
" Conservation Alternative" study is referenced but it was totally discredited during recent New York Public Service Commi'sion hearings.
Moreover, SOC fails to show that the s
ultimate outcome of cost-benefit balance would shift under the weight of the alleged changed circumstances.
1/
utting to one side that SOC is nos in the wrong P
forum, it is also inappropriate for S0C to try to use 5 2.206 to recon.' der issues already decided.
See Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), DD-79-10, 10 NRC 129, 131 (1979).
~
. 4 Financial Qualifications.
The financial qualifications of an applicant must be demonstrated at both the CP and OL stages of the licensing process.
See 10 CFR S 50.33(f).
Again, a 5 2.206 proceeding is not the appropriate forum for SOC's arguments-on this score.
The arguments, in any event, are not substantial.
(1) SOC points to the derating of LILCO bonds but offers no evidence that bond offerings at the new ratings are infeasible.
See Public Service Company of New Hampshire (Scabrook Station, Units 1 and 2),
CLI-78-1, 7 NRC 1, 20 (1978).
(2) SOC asserts that LILCO needs interim rate relief, pending final PSC action on the Company's present rate request, and yet fails to note that interim relief has already been granted.
(3) SOC implies some vague link between Shoreham'a construction schedule, LILCO's request for rate relief and plant safety but cites no evidence whatsoever that the plant is being improperly built.5/
Siting Criteria.
SOC argues that Shoreham is not sited in accordance with criteria now under development and as such can-the Commissions new emergency planning regulations.
not meet 5/ This failure is particularly telling since the Commission has recognized that for established utilities, i
i as opposed to ones formed solely for the construction of a nuclear plant, the relationship between financial quali-fications and safety is somewhat tenuous.
Id. at 11.
1 l
l I
-+
~
, First, to the-extent new siting criteria are the subj ect of rulemaking activity, they are not properly raised in a 5 2.206 request.
See Public Service Electric and Gas Company (Salem Nuclear Generating Station, Units 1 and 2),
[
DD-80-19, 11 NRC 625, 627-28 (1970).
Nor.can the request
.rubstitute-for a petition for rulemaking to impose new criteria.
See General Electric Company (Vallecitos Nuclear Center, License No. SNM-960), DD-79-9, 9 NRC 744, 753 (1979).
Second, and more significant, the Licensing Board in Shoreham's OL proceeding has already admitted SOC's smergency planning contentiens.
The only conclusion that can be drawn from the present request is that SOC seeks not so much a determination on the merits as a means to delay an ultimate I
decision by raising identical issues in multiple forums.
Documentation of Deviations.
In essence, SOC is com-plaining about the way the NRC Staff is conducting its safety review of the Shoreham plant.
The key issue, however, is not how the plant ir ravicwed but whether the review (however conducted) adequately assures its safety.
Interest-ingly, SCC does not point to a single instance where plant safety is compromised by the current reviaw process.
And, as emphacized in Part II, if such an instance does exist, it
.would be the prototypical example of an OL proceeding contention.
[.lF 2_
. TMI Issues.
The Commission has issued guidance concerning
- the litigation of TMI issues'in OL proceedings.
See "Further Commission Guidance for Power Operating Licenses:
Revised Statement.of Policy," 45-Fed. Reg. 85236 (December 24, 1980).
Once again, SOC has shown no exceptional circumstances that might justify.considering TMI issues in both Shoreham's OL proceeding and a.5 2.206 case.
IV.
As concluded in our February 4 submittal to you, there is no basis for suspending, revoking or modifying Shoreham's CP.
SOC has not raised the sort of " substantial health or safety issues" required to sustain a show cause order.
See Consolidated Edison Company (Indian Point, Units 1-3), CLI-75-8, 2 URC.173, 176 (1975).
Instead, SOC has tried to cir-cumvent the available and appropriate _ forum for.its complaints in order to. complicate and delay Shoreham's licensing.
SOC's companion request for a CP extension hearing hac a similar goal.
As such, both requests should be denied.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY i
W. 7aylor vele V III gy Anthony F.
Earley, Jr.
Huncan & Williams P. O. Eox 1535 Richmond, VA 23212 Dated:
February 27, 1981
g L.
.-+
l s,
~
a< ~
,l
~
1
'I In the Matter of LONG ISLAND LIGHTING COMPANY >
JShoreham Nuclear Power St& tion, Unit 1)
CERTIFICATE'OF SERVICE I hereby certify'that copies of PERMITTEE's OPPOSITION
~
TO SOC's REQUEST THAT SHOREMAM's CONSTRUCTION PERMIT Bl'.
SUSPENDED,~ REVOKED OR MODIFIED were served on the following by first-class mail, postage prepaid, on February 27, 1981:
~
Harold R. Denton, Director Office'of Nuclear-Reactor Regulation
- U.S.. Nuclear Regulatory Commission Washington, D.C.
20550
-Stephen B. Latham, Esq.
Twomey, Latham.&~Schmitt 33 West-Second Street P.LO. Box.398 LRiverhead, NY 11901
- MHB Technical Associates 1723 Hamilton Avenue, Suite K s SancJose,-CA 95125 r
~ ' Bernard M. Bordenick, Esq.
.U.S. Nuclear Regulatory Commission
. Washington, D.C.
20555 Secretary U.S. Nuclear Regulatory Commission Attn:
Chief, Docketing and Service Section Washington, D.C.
20555 hh Anthony F.
rley. Jr.
'/
Hunton &
illiams 707. East Main Street Richmond, VA 23212
. Dated: -February 27, 1981 4
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