ML20072B347

Motion for low-power Ol.Partial Initial Decision Needed on full-power Operation for Issues on Which Record Complete. Certificate of Svc Encl

ML20072B347
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/08/1983
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8306130404
Download: ML20072B347 (15)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

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(Shoreham Nuclear Power Station, )

Unit 1) )

APPLICANT'S MOTION FOR LOW-POWER OPERATING LICENSE Pursuant to the Commission's regulation 10 C.F.R.

S 50.57(c), the applicant, Long Island Lighting Company (LILCO), makes this motion for an operating license authorizing low-power testing and further operations short of full power operation.1/ More specifically, LILCO requests authorization to load fuel into the Shoreham reactor and to operate the fa-cility at power levels not to exceed five percent of full power.

1/ In addition to this motion under 10 C.F.R. 5 50.57(c),

LILCO will also request a temporary operating license under section 11 of the 1982-83 NRC Authorization Act, Pub. L. No.97-415, 96 Stat. 2067 (1983), and the regulations implementing it, 48 Fed. Reg. 14,926-33 (1983) (proposed implementing regu '

lations), once these regulations become final.

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As will be shown below, in the circumstances of the 4

.Shoreham proceeding no special Board findings tailored to the facts of low-power operation are necessary to grant this mo-tion; all that is required is a partial initial decision on full-power operation with respect to all issues as to which the evidentiary record is complete.

A. Legal Authority .

1 The authority for this motion, 10 C.F.R. $ 50.57(c) l (1982), reads as follows:

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.(c) An applicant may, in a case where a hearing is held in connection with a pending proceeding under this sec-tion make a motion in writing, pursuant to this paragraph (c), for an operhting  ;

. license authorizing low-power testing ,

(operation at not more than 1 percent of full power for the purpose of testing the ,

facility), and further operations short

, of full power operation. Action on such j a motion by the presiding officer shall J

be taken with due regard to-the rights of the parties to-the proceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized. Prior to taking any action on such a motion which any party opposes, the presiding l off.icer shall make findings on the mat-ters specified in paragraph (a) of this section'as to which there is a controver-sy, in the form of an initial decision with respect to the contested activity

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sought to be authorized. The Director of Nuclear Reactor Regulation will make findings on all-other matters specified i

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in paragraph (a) of this section. If no party opposes the motion, the presiding officer will issue an order pursuant to

$ 2.730(e) of this chapter, authorizing the Director of Nuclear Reactor Regula-tion to make appropriate findings on the matters specified in paragraph (a) of this section and to issue a license for the requested operation.

In the event that there is opposition to this motion, the Atomic Safety and Licensing Board, by the terms of 10 C.F.R. i 50.57(c), will have to make findings "on the matters specified in [5 50.57(a)] as to which there is a controversy, in the form of an initial decision with respect to the contest-ed activity sought to be authorized."

B. The Activity Sought to Be Authorized LILCO seeks to load fuel and to operate the Shoreham Station at power levels not to exceed five percent of rated power. This will permit LILCO to conduct low-power testing.

The low-power testing program is described in the Shoreham FSAR, Chapter 14.

C. The Matters in Controversy The " matters specified" in 5 50.57(a) are the following:

(1) Construction of the facility has been substantially completed, in confor-mity with the construction permit and the j application as amended, the provisions of i

the Act, and the rules and regulations of the Commission; and (2) The facility will operate in conformity with the application as amended, the provisions of the Act, and the rules and regulations of the Commis-sion; and (3) There is reasonable assurance (i) that the activities authorized by the operating license can be conducted with-out endangering the health and safety of the public, and (ii) that such activities ,

will be conducted in compliance with the a regulations in this chapter; and (4) The applicant is technically and financially qualified to engage in the

activities authorized by the op'erating license in accordance with the regula-tions in this chapter. However, no find-ing of financial qualifications is neces-sary for an electric utility applicant for an operating license for a production or. utilization facility of the type de-scribed in 5 50.21(b) or 5 50.22.

(5) The applicable provisions of Part 140 of this chapter have been 4 satisfied; and (6) .The issuance of the license will not be inimical to-the common defense and security or to the health and safety of the public.

10 C.F.R. 5 50.57(a) (1982), as amended, 47 Fed. Reg. 13,755

< col. 3 (Mar. 31, 1982).

The matters in controversy in the Shoreham proceeding can be further narrowed to the contentions, apart from offsite emergency planning, that have not been settled.2/ Listed in 2/- Theen litigated and still unsettled contentions have l resulted from an operating licensing proceeding begun in 1976.

(footnote continued)

1 the order in which they were tried, these contentions are the following:

Contention Contention Number Title SC/ SOC 7B; Safety Classifica-SOC 19(b) tion / Systems Inter-action SC 4 Water Hammer SC 10 ECCS Core Spray SC 11 Valve Failure SOC 19(e) Seismic Design SC/ SOC 22; SRV Tests and SRV SC 28(a)(vi)/ Challenges SOC 7A(6)

SC 16 ATWS SC 27/ SOC 3 Post Accident Monitoring SC 21 Mark II SC/ SOC 12; Quality Assurance SC 13-15 (footnote continued)

After years of discovery and refinement of contentions, eviden-tiary hearings began in May 1982 and have now run for over 100 days, covering all matters in controversy except offsite emer-gency planning.

Contention Contention Number Title SC 8/ SOC Environmental 19(h) Qualification Since the evidentiary record has been closed on every one of these issues, there is a record adequate for a full-power license decision as to them and, a fortiori, for a low-power license, as we shall show in Part E below.

D. Phase II (Offsite) Emergency Planning The only other matter in controversy is offsite emer-gency planning. The issues involving LILCO's onsite emergency preparedness were addressed in Phase I of this proceeding.3/

The County defaulted on Phase I, and consequently no onsite is-sues are left before this Board.4/

3/ The Phase I issues were those "within LILCO's responsibil-ity to perform whether.it be on site or off site." Prehearing Conference of April 14, 1982, Tr. 796; see also Tr. 797-802.

They were the issues " currently capable of final resolution" even without an offsite plan. Prehearing Conference Order (Phase I - Emergency Planning) 2 (July 27, 1982); see also Mem-orandum and Order Denying Suffolk County's Motion to Terminate the Shoreham Operating License Proceeding,.LBP-83-22, 17 NRC

__, slip op. 64 (Apr. 20, 1983).

4/ Memorandum and Order Confirming Ruling on Sanctions for Intervenors' Refusal to Comply with Order to Participate in Prehearing Examinations (Dec. 22, 1982); see also Memorandum and Order Denying Suffolk County's Motion to Terminate the Shoreham Operating License Proceeding, LBP-83-22, 17 NRC __,

slip op. 63-65 (Apr. 20, 1983).

As for offsite (Phase II) emergency planning issues, no findings need be made before a five percent operating license is issued. The Commission's regulation 10 C.F.R. 9 50.47(d) provides that "no NRC . . . review, findings or determinations" on offsite preparedness are required:5/

(d) Notwithstanding the requirements of paragraphs (a) and (b) of this sec-tion, no NRC or FEMA review, findings, or determinations concerning the state of offsite emergency preparedness or the ad-equacy of_and capability to implement State and local offsite emergency plans are required prior to issuance of an operating license authorizing only fuel loading and/or low power operations (up to 5% of the rated power). Insofar as emergency planning and preparedness re-quirements are concerned, a license au-thorizing fuel loading and/or low power operation may be issued after a finding is made by the NRC that the state of onsite emergency preparedness provides reasonable assurance that adequate pro-tective measures can and will be taken in the event of a radiological emergency.

The NRC will base this finding on its as-sessment of the applicant's emergency plans against the pertinent standards in paragraph (b) of this section and Appen-dix E of this Part.

47 Fed. Reg. 30,236 col. 1 (July 13, 1982).s/ -

5/ The amended rule is now under judicial review. Union of Concerned Scientists v. NRC, D.C. Cir. No. 82-2053 (petition filed Sept. 10, 1982).

p/ The NRC Staff filed written testimony on Phase I emergency planning on October 12, 1982 stating that a low-power license (footnote continued) i I

The plain words of this regulation clearly authorize a low-power license under 10 C.F.R. 5 50.57(c) for Shoreham. The Licensing Board, however, has said that in its judgment 5 50.47(d) should not be applied in the special circumstances of the Shoreham case. Memorandum and Order Referring Denial of Suffolk County's Motion to Terminate to the Appeal Board and Certifying Low-Power License Question to the Commission (Through the Appeal Board), LBP-83-21, 17 NRC __, slip op. 12 (Apr. 20, 1983).7/ The Board certified this question to the Commission. The Commission has not yet decided whether to ac-cept the certified question. Memorandum and Order, Long Island (footnote continued) can be granted:

With respect to onsite preparedness, we conclude that adequate protective measures can and will be taken in response to the emergency. Pursuant to the provision of 10 C.F.R. 5 50.47(d), this finding is suffi-cient to support a license authorizing fuel loading and/or low power operation. (See 47 Fed Reg. 30232, July 13, 1982).

NRC Supplemental Testimony of John R. Sears Regarding Onsite Emergency Planning (Ph.ase I) 5 (served Oct. 12, 1982).

7/ Circumstances have changed since the Board's April 20 order. On May 26, 1983, LILCO filed offsite emergency' plans designed to compensate for Suffolk County's nonparticipation.

It is LILCO's view that these plans go far toward removing the obstacle that the Board saw to a low-power license.

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b Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

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CLI-83-13, 17 NRC __, slip op. 5 n.4 (May 12, 983)./ Nor have , '

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the parties had the opportunity to brief the issue.

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, t It is likely that 5 50.47(d)'s applicability to , Slioreham' ~ , ,e f

will be resolved in one of three fashions: by the Commission ,,/

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if it accepts the question c,ertified to it by the Board's April ,

20 order,bytheCommissionwhenitactsonLILCO'santicihated ,. . e ,'

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application for a temporary operating license under section"11 of the 1982-83 Authorization Act, or by the new Licensing Board at some point during the course of the litigation of offsite .'

emergency preparedness.g/ Intheeventthequestionhasno{;

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, g/ The Board's April 20 order stated inipart: e .'

It may be th~at our pre'sent,' Inability '

s to find reasonable assurance'that.ful17 power emergency preparedness'regulrements>

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can in the future' be met for Shereham,will, '

not be resolved unless and until' cur ini- i tial decision on the merits of the'. impend- - ' ,

ing offsite emergency plan litigation finds otherwise. However,1 changes in circum . , , , , ,

stances, '

or facts could hearing process, developed supportasthepart conof . the /- '

clusion prior to; issuance of our initial J  ;

decision'on emergency planning that there' is no longer apparent any factual bar to ,

t the eventual development of offsite emer-gency preparedness adequate to support is- ,

suance of a full-power operating license.- ,

LBP-83-21, slip op. 14 (emphasis added).

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been' resolved by the time this Board is prepared to rule on a i low-pover license for Shoreham, we urge the Board to issue its

. decision subject to subsequent resolution of the issue.

E. The Reason this Motion Should Be Granted In the particular circumstances of this case, it will not be necessary for the Board to address the facts of low-power operation per se in order to make the necessary findings on the non-emergency planning matters in controversy.9/ It will be sufficient to issue a partial initial decision on the unresolved full-power issues as to which the record has been closed (Part C above). Little more is needed, in short, than a partial initial decision along the lines of "LILCO's Proposed Opinion,' Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision" (Jan. 17 and May 2, 1983) and "QA/QC and EQ Supplement to LILCO's Proposed Opinion, Findings 9/ Strictly speaking, if it is asserted that there are mat-ters "as to which there is a controversy," the initial decision  !

on'these matters, insofar as this motion for a low-power li-  !

cense is concerned, need only be "with respect to the contested activity sought to be authorized," 10 C.F.R. 5 50.57(c). For example, the Board would only have to find, with respect to the

ATWS issue, that Shoreham is adequately protected against ATWS

events at five percent power or less. But in this case LILCO is proposing instead that the Board simply decide the full-1 power issues except for those involving Phase II emergency planning.

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of Fact and Conclusions of Law in the Form of a Partial Initial f Decision" (Mar. 28, 1983).

On April 8, 1983, the record in this proceeding was closed as to all issues except Phase II (offsite) emergency planning. Tr. 21,176.10/ Proposed findings have been filed on all these issues.

A fortiori, then, there is a record sufficient to sup-port a low-power license as to these issues, because the ris'ks of low-power operation are less than those of full-power operation.11/ As the Commission has observed, fuel loading and low-power testing involve minimal risk to the public health and safety, in view of the limited power level and correspondingly limited amounts of fission products and decay heat, and greater time available to take any 10/ Suffolk County now has two requests to reopen the record pending before the Board and may file others in the future.

But there will be no reopening unless the County can meet the Commission's usual standards for revisiting the record. For a recent summary of these standards, see Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-728, 17 NRC __, slip op. 34 n.66 (May 18, 1983).

11/ Because the re~ cord is complete on all such issues relevant to a low-power license, there is no need for new contentions or evidence on low-power operation. The low-power motion context is not a " free opportunity to bring in new contentions."

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 186 (1982); see also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC __, slip op. 37-38 n.72 (May 18, 1983).

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necessary corrective action in the event of an accident.

46 Fed. Reg. 47,765 col. 1 (Sept. 30, 1981) (supplementary in-formation accompanying adoption of final rule concerning Com-mission effectiveness review prior to fuel loading); see also the notice of the amendment of 10 C.F.R. 5 50.47(d), 47 Fed.

Reg. 30,232-36 (July 13, 1982).

As for emergency planning, all onsite issues were dis-posed of by the intervenors' default in Phase I. No offsite preparedness need be shown by the terms of 6 50.47(d). There-fore, there is nothing to prevent the Board from issuing a par-tial initial decision and granting this motion, apart from the views about the special circumstances of this case in the i

i Board's April 20 certification order. Again, if the Board's question regarding the applicability of 5 50.47(d) remains unresolved when the Board is prepared to rule on the present

! motion, we respectfully request that a ruling be issued, sub-ject to subsequent resolution of the 6 50.47(d) matter.

F. Need for a Low-Power License The Shoreham Station'is now about 99 percent complete; it is expected to be physically ready for fuel loading by August 1983. Two of the intervenors in this case have referred

to the " substantial delay" that will result from litigating the offsite emergency planning issues:

Moreover, the granting of the County's motion [to terminate this proceeding) would obviate the substantial delay in the resolution of this proceeding that would otherwise result from the months of intensive litigation that we are now fac-ing.

Memorandum of Shoreham Opponents Coalition and North Shore Com-mittee in Support of Suffolk County's Motion to Terminate the Shoreham Operating License Proceeding 14-15 (March 17, 1983).

Thus, as LILCO pointed out in its brief of March 18, 1983, no matter when Shoreham is ready to load fuel, that time will likely come before the litigation of emergency planning can be completed.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY

,s 69 By  ! 1 W .' Va r Reveley, III Jamps . Christman Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, Virginia 23212 DATED: June 8, 1983

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LILCO, Juno 8, 1983 4

CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 (OL)

I hereby certify that copies of Applicant's Motion for Low-Power Operating License were served this date upon the fol-lowing by Federal Express as indicated by one asterisk, and otherwise by first-class mail, postage prepaid.

Lawrence Brenner, Esq.* Secretary of the Commission Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Regulatory Dr. Peter A. Morris

• Commission Administrative Judge Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Dr. James H. Carpenter

• Administrative Judge Daniel F. Brown, Esq.*

Atomic Safety and Licensing Attorney Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Bernard M. Bordenick, Esq.*

David A. Repka, Esq. David J. Gilmartin, Esq.

U.S. Nuclear Regulatory Attn: Patricia A. Dempsey, Esq.

Commission County Attorney Washington, D.C. 20555 Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11787

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Herbert H. Brown, Esq.* Stephen B. Latham, Esq.

Lawrence Coe Lanpher, Esq. Twomey, Latham & Shea Karla J. Letsche, Esq. 33 West Second Street Kirkpatrick, Lockhart, Hill, P. O. Box 398 Christopher & Phillips Riverhead, New York 11901 l 8th Floor 1900 M Street, N.W. Ralph Shapiro, Esq.

Washington, D.C. 20036 Cammer and Shapiro, P.C.

9 East 40th Street Mr. Marc W. Goldsmith New York, New York 10016 Energy Research Group 4001 Totten Pond Road James Dougherty, Esq.

Waltham, Massachusetts 02154 3045 : Porter Street Washington, D.C. 20008 MHB Technical Associates 1723 Hamilton Avenue Howard L. Blau Suite K 217 Newbridge Road San Jose, California 95125 Hicksville, New York 11801 Mr. Jay Dunkleberger Matthew J. Kelly, Esq.

New York State Energy Office State of New York Agency Building 2 Department of Public Service Empire State Plaza Three Empire State Plaza Albany, New York 12223 Albany, New York 12223 Stewart Glass, Esq. Spence Perry, Esq.

Regional Counsel Associate General Counsel Federal Emergency Management Federal Emergency Management Agency Agency 26 Federal Plaza, Room 1349 Washington, D.C. 20472 New York, New York 10278 i

l I Hunton & Williams ,

707 East Main Street '

P.O. Box 1535 Richmond, Virginia 23212 DATED: June 8, 1983 L- __ _ _ _ _ _ _ _ _ - _ _ - - - - - - - - - - _ - - - - --