ML20082S468
| ML20082S468 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/09/1983 |
| From: | Harshe B UTILITY SAFETY CLASSIFICATION GROUP |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20082S466 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8312140152 | |
| Download: ML20082S468 (12) | |
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'83 Ec 12 R2:25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.:.:-r---i-
?,'{, Ci: i. E a BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In The Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322 (OL)
)
(Shoreham Nuclear Power
)
Station, Unit 1)
)
UTIL'ITY SAFETY CLASSIFICATION GROUP'S MOTION TO FILE BRIEF AMICUS CURIAE I.
INTRODUCTION The Utility Safety Classification Group is an ad hoc group of thirty-eight utilities formed to address the safety classification issue.
The Utility Group members are:
Arkanas Power & Light Co.
(representing also Mississippi Power &
Light, and Louisiana Power & Light)
Baltuncre Gas & Electric Co.
Cincinnati Gas & Electric Co.
Cleveland Electric Illuminating Co.
Commonwealth Edison Co.
Consolidated Edison Company of New York Consumers Power Co.
Detroit Edison Co.
Florida Power Corp.
Florida Power & Light Co.
Gulf States Utility Co.
Illinois Power Co.
Long Island Lighting Co.
Nebraska Public Power District Niagara Mohawk Power Corp.
Northeast Utilities Service Co.
Northern States Power Co.
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Omaha Public Power District Pacific Gas & Electric Co.
Pennsylvania Power _& Light Co.
Public Service Company of Indiana
'Public Service Company of New Hampshire (representing also the Yankee Atomic Electric Power. Company, Maine Yankee Atomic Power Co.,
and Vermont Yankee Nuclear Power Co.)
Public Service Electric & Gas Co.
Rochester Gas & Electric Corp.
Southern California Edison Co.
Sacramento Municipal Utility District SNUPPS (representing Union Electric Co., Kansas Gas &
r-Electric Co., Kansas City Power & Light Co.,
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and Kansas Electric Power Coop., Inc.)
Toledo Edison Co.
Wisconsin Electric Power Co.
lt Wiscons-in Public Service Corp.
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Pursuant to 10 CFR_S 2.715(d), the Utility Safety Classifica-
)
tion Group (" Utility Group") asks permission to file a brief amicus curiae supporting the position of Long Island Lighting Company ("LILCO") in this proceeding The Utility Group's ami-cus brief will address the proper interpretation and applica-tion of the regulatory terms "important to safety" and " safety related."
An. demonstrated below, the Atomic Safety and Licens-ing Appeal Board's (Appeal Board) ruling on this issue will 2
L have a substantial effect on the Utility Group's licensing and O'
operation of nuclear reactors.
Moreover, the Utility Group's s
amicus brief will aid the Appeal Board's resolution of this issue in a number of important respects.
First, the amicus i
brief will provide a broader view than would otherwise be l.
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available of the historical interpretation and application of f
.s these terms?
Second, the amicus brief will provide an analysis 9
'of the advers,e ef fects on the entire industry which would re-
'i sult if ti.4 NRC were now to abandon the long-standing interpre-
- 1. 'g tation of thece. terms.
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9 II.
THE UTILITY GROUP'S INTEREST IN THESE PROCEEDIhGS The Utility Group's thirty-eight members have over seventy nuclear reactors currently in operation or under con-s t r uctio,ri.
These plants have all been designed and built in accordance with the NRC's regulations.
Those plants now op-erating also are governed by_NRC regulations.
In1 applying the 1
appropriate NRC regulations th the design, construction and op-t eration of their plants, thefutilities'in this Group inter-preted the terms "important to safety",a,nd " safety related" as synonymous.1/.This interpretation has been repeatedly recog-nized and sanc/tioned in NRC bicensing actions', and the'NRC has I
used this interpretation in its own -regulations and ' regulatory l
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Wherever the non-regulatory term " safety grade" was used in design, construction and operation of nuclear plants, it, too, was and is considered equivalent to " safety related."
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The Utility Group's interest in the outcome of this proceeding is acute because the Shoreham Licensing Board im-posed upon LILCO as a license condition a definition of "impor-tant to safety."
A number of Utility Group members own plants that are currently awaiting operating licenses.
Given the ge-neric applicability of the reasons stated by the Licensing Board for imposing a license condition on Shoreham, it is pos-sible that other plants may receive licenses with similar con-ditions.
As the Group's brief will show, it is likely that will result in imposing new requirements on Group members with-out any effective means to be heard on the issue.
- Moreover, the vagueness and lack of guidance in the condition imposed by the Licensing Board makes it impossible for Group members to know Ehat will be required of them.
These problems raise sig-nificant due process questions.
Notwithstanding the license condition, the importance to Utility Group members of the interpretation of important to j
safety.is obvicus.
Throughout the NRC's regrlations, certain requirements and standards are imposed on structures, systems I
and components that are " safety related" or "important to safe-ty."
Expansion of the term "important to safety" beyond " safe-L ty related"-to include some undefined set of structures, sys-tems and components would expand in unexamined ways the l'.
l requirements to which the Utility Group's nuclear plants are subject.1/
Given the extensive use of the term "important to safety" in the NRC's regulations, this impact might be substan-tial and far reaching.
III. THE UTILITY GRGUP'S AMICUS BRIEF IS ESSENTIAL TO A RATIONAL DECISION IN THESE PROCEEDINGS The Utility Group's amicus brief will provide the in-formation that should. be considered in making a decision that will affect the entire nuclear power industry.
For example, the manner in which these terms have been historically inter-preted and applied by NRC and the industry is a crucial issue in these proceedings.
The amicus brief will provide important information concerning the long-standing industry licensing and operating experience that is nec'essary to make this determina-tion.
In particular, the Utility Group will confirm that the industry's and the NRC's interpretation that "important to safety" and " safety related" are synonomous has been clear and unambiguous.
Only recently has the NRC Staff suggested that 2/
The Utility Group recognizes that the NRC has regu-lated certain aspects of non-safety related structures, systems and components in the past.
The change in the d6finition of important to safety, however, would expand the scope of many regulations to the non-safety related area without appropriate procedures and without any evidence that a real safety concern exists.
the two teams are not equivalent.
This information is crucial in the applice. tion of the accepted rules for interpretation of agency regulations under the Administrative Procedure Act and related case law.
The amicus brief will also explain the adverse ef-fects on all types of nuclear power plants if the NRC abandons the historical interpretation and application of important to safety in licensing the shoreham plant.
This explanation will include a discussion of the adverse effects a new interpreta-tion of the term would have on operating plants.
These adverse effects on operating plants would not otherwise be adequately considered in the Shoreham proceedings, which involve only the licensing of a new plant but which will affect all nuclear plants.
Moreover, part of the adverse impact involves the need to expend resources to demonstrate compliance with the changed regulatory definition.
Since LILCO was required to bear this burden as part of the searching inquiry on the safety classifi-cation issue conducted in the Shoreham case, no separate' con-sideration was given to this aspect of the issue.
The impact of the diversion of finite resources to conduct an inquiry such as that done for Shoreham on every nuclear plant would be sig-nificant and needs to be considered by the Appeal Board.
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Also, if the Appeal Board is to engage in essentially a policy-making decision involving the appropriate scope of the NRC's regulations, it needs to be aware of other initiatives underway to determine whether a need to expand the definition of important to safety exists.
The Utility Group will address industry's efforts to determine whether a need does exist to expand the NRC's regulatory authority and, if so, precisely how and in what discrete areas it should be accomplished.
By demonstrating the entire range of industry-wide ef fects that would result from reversing the historical inter-pretation and application of the term "important to safety,"
the Utility Group's amicus brief will also demonstrate the im-propriety of making such a major, far-reaching regulatory change in the context of just one plant's licensing proceed-ings.
The amicus brief will, therefore, be invaluable in deciding the crucial issues (1) whether the NRC can change its interpretation of the terms "important to safety" without first justifying that change through the record developed by an in-formal rulemaking under the Administrative Procedure Act, and (2) whether the NRC should change its interpretation of a regu-latory term in an individual licensing case even if it has the power to do so. _ _ _ _ _ _ _ _ _ _ _ _ _ _
1 IV.
CONCLUSION For the foregoing reasons, the Appeal Board should permit the Utility Group to file a brief amicus curiae in the Shoreham proceedings no later than December 23, 1983, the date on which LILCO's brief is due.
This brief will not exceed seventy (70) pages in length.
If possible, the Utility Group would appreciate a ruling from the Appeal Board on this request by December 19, 1983.
Thus, we ask that the Appeal Board set an appropriate schedule for the responses of the parties, if any.
Respectfully submitted, UTILITY SAFETY CLASSIFICATION GROUP bu... e - -f,Y n : /c..
Bruce L. Harshe Chairman Utility Safety Classification Group Technical Advisors to the Utility Safety Classification. Group KMC, Inc.
801.- 18th Street, N.W.
Washington, D.C.
20006 Counsel to the Utility safety Classification Group HUNTON & WILLIAMS P.O. Box 1535 Richmond,'VA 23212.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 13 DEC 12 Pi2:25 BEFORE THE ATOMIC SAFETY AND
[g c g.....I [N;'[j"5[i.'a-LICENSING APPEAL BOARD BRANCH In the Matter of
)
)
'LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322 (OL)
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
NOTICE OF APPEARANCE Please note the appearance of the undersigned, who has been admitted to practice law before the Supreme Court of Virginia, as one of the counsel for the Utility Safety, Classification Group in the above-captioned docket.
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Antgony F.
Earley, Jr.
Hunton & Williams 707 East Main Street P.
O. Box 1535 Richmond, Virginia 23213 (804) 788-8361 DATED:
December 9, 1983
CERTIFICATE OF SERVICE DOLKETEC U%F:
In the Matter of DE 12 R2 3 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 (OL) 0FFaiOFSL>g; b6CXCTUG & SEPv ts BRANCH I hereby certify that copies of Utility Safety Classification Group's Motion to File Brief Amicus Curiae were served this date upon the following by first-class mail, postage prepaid, or by hand, as indicated by an asterisk.
Alan S. Rosenthal, Gary J. Edles*
Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fourth Floor Fourth Floor East West Towers (North Tower)
East West Towers (North Tower) 4350 East-West Highway 4350 East-West Highway Bethesda, Maryland 20814 Bethesda, Maryland 20814 Howard A. Wilber*
Lawrence Brenner, Esq.*
Atomic Safety and Licensing Administrative Judge Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Fourth Floor Commission East West Towers (North Tower)
Fourth Floor 4350 East-West Highway East West Towers (North Tower)
Bethesda, Maryland 20814 4350 East-West Highway Bethesda, Maryland 20814 O
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, Dr. Peter A. Morris
- Administrative Judge Dr. George A. Ferguson*
Atomic Safety and Licensing Administrative Judge Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission School of Engineering Fourth Floor Howard University East-West Towers 4350 East-West Highway (North Tower) 2300 6th Street, N.W.
Washington, D.C.
20059 Bethesda, Maryland 20814 Secretary of the Commission U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Panel Washington, D.C.
U.S. Nuclear Regulatory 20555 Commission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel Bernard M. Bordenick, Esq.*
U.S. Nuclear Regulatory David A. Repka, Esq.
Commission Washington D.C.
U.S. Nuclear Regulatory 20555 Commission Maryland National Bank Building David J.
7735 Old Georgetown Road Gilmartin, Esq.
Attn:
Patricia A.
Bethesda, Maryland 20814 County Attorney Dempsey, Esq.
Attn:
Suffolk County Department of Law NRC lst Floor Mail Room Veterans M Stephen B. Latham, Esq.
Hauppauge,emorial Highway New York 11787 Twomey, Latham & Shea 33 West Second Street Herbert H, Brown, Esq.*
P. O. Box 398
'Irawrence Coe Lanpher, Esq.
Riverhead, New York Karla J. Letsche, Esq.
11901 Kirkpatrick, Lockhart,
- Hill, Ralph Shapiro, Esq.
Christopher & Phillips Cammer and Shapiro, P.C.
8th Floor 9 East 40th Street 1900 M Street, N.W.
New York, New York 10016 Washington, D.C.
20036 James Dougherty, Esq.
Mr. Marc W. Goldsmith 3045 Porter Street Energy Research Group Washington, D.C.
4001 Totten Pond Road 20008 Waltham, Massachusetts Howard L. Blau 02154 217 Newbrid MHB Technical Associates Hicksville,ge Road New York 11801 1723 Hamilton Avenue Suite K Jonathan D.
San Jose, California 95125 New York StateFeinberg, Esq.
Department of Public Service Three Empire State Plaza Albany, New York 12223
' Mr. Jay Dunkleberger Edward M. Barrett, Esq.
New York State Energy Office Legal Department Agency Building 2 Long island Lighting Company Empire State Plaza 250 Old Country Road Albany, New York 12223 Mineola, New York 11501 W. Taylor Reveley, III, Esq.
Hunton & Williams P. O. Box.1535 707 East Main Street Richmond, Virginia 23212
- l h wt GE Anthqny F..Earley, Jr.
Hunton & Williams P. O. Box 1535 707 East Main Street Richmond, Virginia 23212 DATED:
December 9, 1983 F
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