ML20039B576

Answer Opposing Shoreham Opponents Coalition Contention 7.B. Contention Stems from NUREG-0660.Commission Has Made Clear That Only TMI Contentions Re NUREG-0737 May Be Litigated in Licensing Case.Certificate of Svc Encl

ML20039B576
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/18/1981
From:	Early A LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8112230259
Download: ML20039B576 (10)

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CCCKETC3-DecembEEC18, 1981 UNITED STATES OF AMERICA N0 d6 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and LicensiAg.S.RErgp Bo ai-d'U '

o In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) e g

) Docket No. 50-322 (

(Shoreham Nuclear Power Station, )

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5 LILCO'S OPPOSITION TO SOC CONTENTION 7.B .

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p On December 10, the Shoreham Opponents Coalition, Long Island Lighting Company and NRC Staff submitted a " Motion for Acceptance of a Stipulation Regarding SOC Contentions . ..

dated December 2, 1981. Among other things, this stipulation includes a proposed SOC Contention 7 dealing with TMI issues, several of which are based on items in NUREG-0660 ("NRC Action Plan Developed as a Result of the TMI-2 Accident") rather than on NUREG-0737 (the Commission's subsequent " Clarification of TMI Action Plan Requirements"). The proposed SOC contentions that stem from NUREG-0660, rather than 0737, include:

7.B.(1) IREP or Probabilistic Risk Assessment, 7.B.(2) Systems Interaction, 7.B.(3) Documentation of Deviations, and DN 5 I

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7.B.(4) Reclassification of Equipment.

These NUREG-0660 issues may not be litigated in this a licensing case, although they may be raised in rulemaking pro-ceedings. As indicated below, the Commission has made clear that only TMI contentions related to a specific NUREG-0737 requirement may be litigated in an individual licensing case, such as this.

II.

The NUREG-0737 list of requirements was culled by the Commission from the larger list of NUREG-0660 concerns. As the NRC explained:

Based upon its extensive review and consideration of the issues arising as a result'of the Three Mile Island acci-dent -- a review that is still continu-ing -- the Commission has concluded that the list of TMI-related require-ments for new operating licenses found in NUREG-0737 can provide a basis for responding to the TMI-2 accident. 'The Commission has decided that current operating license applications should be measured by the NRC staff against the regulations, as augmented by these requirements. In general, the remain-ing items of the Action Plan should be addressed through the normal process for development and adoption of new requirements rather than through imme-diate imposition on pending applica-tions.

45 Fed. Reg. 85237-38 (1980).

And as the NRC explained further:

The Commission believes the TMI-related operating license requirements list [that is,

o NUREG-0737] as derived from the process-described above should be the principal basis for consideration of TPI-related issues in the adjudicatory process. There are good reasons for this. First, this represents a major effort by the staff and Commissioners to address more than one hundred issues and rec-ommendations in a coherent and coordinated fashion. This entire process cannot be repro-duced in individual proceedings. .Second, the NRC does not have the resources to litigate the entire Action Plan in each proceeding.

Third, many of the decisions involve policy more than factual or legal decisions. Most of these are more appropriately addressed by the Commission itself on a generic basis than by an individual licensing board in a particular-case.

Id. at 85238.

While it is true, nonetheless, that the sufficiency of the NUREG-0737 requirements may be challenged in an individual licensing case, the scope of a permissible challenge is very narrow. The Commission so indicated in April 1981:

What we had in mind was allowing a party to focus on the same safety concern that formed the basis for the NUREG require-ment and litigate the issue of whether the NUREG "rcquirement" is a sufficient response to that concern. Contentions which address a safety concern not considered in NUREG-0694 [ irrelevant in this proceeding] and -0737 shall not be entertained as challenges to the sufficiency of those requirements.

-Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363-64 (1981)

(footnote omitted) (emphasis added).

-The proposed SOC contentions listed above--7.B.(1) to (4)--do not involve safety concerns reflected in NUREG-0737_

requirements. Thus, they are not litigable here since they.

constitute-an impermissible challenge to the NRC's response to TMI. . Absent satisfaction of 10 CFR S 2.758 (which SOC has not -

even tried to satisy), SOC's desire to go beyond NUREG-0737 may be considered only in an NRC_rulemaking, not in this individual; licensing case. An NRC rulemaking on TMI requirements is, in fact, underway. See 46 Fed. Reg. 54378 (1981). SOC's com-plaints belong there.

III.

A.

Against this background, it is useful to review each of the pertinent SOC requests. As to proposed SOC Contention 7.B.(1), there is no NUREG-0737 requirement that plant-specific IREP analyses be performed. See, e.g., Commonwealth Edison Co.

(Byron Station, Units 1 and 2), DD-81-5, 13 NRC 728' 738-,

(1981):

[T]he League expresses concern that systems interaction evaluation and modifications and an Interim Reliability Evaluation Program (IREP)'are-not being implemented for the Byron Station. As explained in the NRC Action Plan,

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the_IREP is.a pilot program which utilizes a few typical plants to determine whether-changes need to be made in the review ~of each plant. There is no pressing reason why Byron should be selected in lieu of another; plant as one of the typical plants for the pilot pro-gram.

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The Commission has not mandated that the IREP be applied to plants like Byron (or Shoreham] which are under review for. operating .

License. The Action Plan describes a gradual implementation of IREP and studies for oper-ating reactors, but IREP is not part of the requirements for new operating licenses out-lined in NUREG-0737, Clarification of TMI Action Plan Requirements.

B.

Nor, as to proposed SOC Contention 7.B.(2) . is there any NUREG-0737 requirement for a systems interaction (SI) ana-lysis of OL applications. See the Byron excerpt just quoted.

C.

SOC's IREP and SI demands are underlain by an insis-tence that Class 9 accidents be litigated at Shoreham. The Board, however, has'already denied such a Class 9 request by SOC. See ASLB Order of March 5, 1980, at 23. And the Commission has made clear that inquiries of the sort demanded by SOC are not to occur in plants whose final environmental statements were published by June 13, 1980. See 45 Fed. Reg. 40101 (1980). Shoreham's FES appeared in October 197.7, over 2-1/2 years before this deadline. Indeed, Shoreham's entire NEPA phase was concluded in August 1978, well before the dead-line. See ASLB Order of August 4, 1978, at 6. Under these circumstances, SOC's insistence on further Class 9 inquiry in

.this proceeding is flatly precluded by pertinent Commission policy.

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If LILCO chooses to investigate Class 9 issues'for Shoreham, using IREP and SI' techniques, that investigation will

.be both voluntary and beyond the scope of this proceeding.

D.

SOC Contention 7.B.(3) -- that Shoreham must.be docu-mented in terms of current regulatory guides, branch technical positions and standard review plans, as well as regulations --

has no basis in NUREG-0737 or any other NRC requirement'. As to' actual regulations, Shoreham must comply with them or receive an exemption. Regulatory Guides, branch technical positions and se on, however, are merely advisory. .As to them, again, there is no NUREG-0737 or other NRC requirement necessitating documentation of the sort requested by SOC. And there is a pending rulemaking designed to determine to what extent, if any, there should in fact be such documentation. See_45 Fed.

Reg. 67099 (1980). Accordingly, there is'no existing reg'la-tory basis for this SOC request, and the request is preempted in.any event by the pending rulemaking. See, e.g., Sacramento Municipal Utility Dist. (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC (slip op. at 32)-(Oct. 7, 1981).

E.

Finally, SOC's request for reclassification of equip-ment, Contention 7.B.(4), is.similarly precluded by Commission

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policy. SOC suggests that two NUREG-0660 items, I.F.1

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(involving-expansion of QA' lists) and II.F.5 (involving revision of safety classification), must be completed before-fuel load. As indicated in the' Action Plan, both of these items involve long-term research. The QA list expansion will be based, in part, on IREP results, and IREP's constitute an Action Plan ir.em not required-by NUREG-0737. See III.A above.

The revision of safety classifications depends upon work still being conducted by IEEE and the NRC. In any event, both tasks envisage ~the production of regulatory guides, which, of course, will not be legally binding.

When the Commission culled from the Action Plan those

-tasks of particular importance, it chose not to include any items involving QA lists or the reclassification of equipment in general. Thuc, once again, SOC is seeking to use this licensing case to add new requirements to those contained in NUREG-0737. As emphasized above, that is impermissible, i IV.

As indicated in the December 2 stipulation, SOC's pro-posed Contention 7 is, in our view, adequately particularized.

For the reasons stated above, however, proposed Contentions 7.B.(1) through (4) are not litigable in this proceeding.

LILCO urges the Board to so rule.

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{ l Respectfully submitted, 1

LONG ISLAND LIGHTING COMPANY -

W. Taylor R @ ey, M I /J / '

Anthony F. Ehrley, Jr. V/

Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 i

December 18, 1981 DATED:

1 1

i l-r 7

In the Matter of LONJ ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 (OL) ,

CERTIFICATE OF SERVICE I hereby certify that copies of LILCO'S OPPOSITION TO SOC CONTENTION 7.B, was served upon the following by first-class mail, postage prepaid, on December 18, 1981:

Louis J. Carter Jeffrey C. Cohen, Esq.

Administrative Judge New York State Energy Office 23 Wiltshire Road Swan' Street Building, Core 1 Philadelphia, PA 19153 Empire State Plaza Albany, New York 12223 Dr. Oscar H. Paris Mr. Jay Dunkleberger Administrative Judge New York State Energy Office Atomic Safety and Licensing Agency Building 2 Board Panel Empire State Plaza U.S. Nuclear Regulatory Albany, New York 11801 Commission Washington, D.C. 20555 Howard L. Blau, Esq.

217 Newbridge Road Mr. Frederick J. Shon Hicksville, New York 11801 Administrative Judge

, Atomic Safety and Licensing Ralph Shapiro, Esq.

Board Panel Cammer and Shapiro, P.C.

U. S. Nuclear Regulatory 9 East 40th Street l Commission New York, New York 10016 Washington, D.C. 20555 David J. Gilmartin, Esq.,

l Secretary of the Commission Attn: Patricia A. Dempsey, Esq.

l U. S. Nuclear Regulatory County Attorney l Commission Suffolk County Department of Law j Washington, D.C. 20555 Veterans Memorial Highway Hauppauge, New York 11787 Atomic Safety and Licensing Appeal Board Panel Mr. Mark W. Goldsmith U. S. Nuclear Regulatory Energy Research Group, Inc.

Commission 400-1 Totten Pond Road Washington, D.C. 20555 Waltham, Massachusetts 02154

Atomic Safety and Licensing Bernard M. Bordenick, Esq.

Board Panel U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission-

• Commission Washington, D.C. 20555 Washington, D.C. 20555 Stephen B. Latham, Esq. MHB Technical Associates Twomey, Latham & Schmitt 1723 Hamilton Avenue 33 West Second Street Suite K P. O. Box 398 San Jose, California 95125 Riverhead, New York 11901 f

g Anthony F. garley7Jr.'

Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED: December 18, 1981 r 3 , - , - , , _ -

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