ML20083M287
| ML20083M287 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/16/1984 |
| From: | Dynner A, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20083M285 | List: |
| References | |
| NUDOCS 8404170550 | |
| Download: ML20083M287 (106) | |
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9 DSCKETED 0
USNPC 4/16/84
'04 hPR 16 PS:d9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-4
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(Low Power)
(Shorehan Nuclear Power Station,
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Unit 1)
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JOINT OBJECTIONS OF SUFFOLK COUNTY AND THE STATE OF NEW YORK TO MEMORANDUM AND ORDER SCHEDULING HEARING'ON LILCO'S SUPPLEMENTAL MOTION FOR LOW POWER OPERATING LICENSE I.
Summary of Objections Pursuant to 10 C.F.R.
Section 2.751a(d) Suffolk County and the State of New York hereby object to the Licensing Board's l
April 6, 1984 Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for Low Power Operating License (the " Low Power Order"), which was served April 9, 1984.
The County's and State's specific objections are su.nmarized as follows:
A.
The Low Power Order establishes a schedule for a hearing on LILCO's Supplemental Motion for Low Power Operatirig License, filed on March 20, 1984 ("LILCO's Low Power Motion").
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Such a hearing is not permitted under the NRC's regulations.
LILCO is attempting to obtain a license to operate Shoreham without any onsite AC power system, as required by General Design Criterion 17 of 10 C.F.R. Part 50, Appendix A.
LILCO's Low Power Motion therefore is an attack on the regulation, in violation of 10 C.F.R.
Section 2.758.
LILCO has not sought a waiver of the provisions of GDC 17 pursuant to the procedures of Section 2.758.
Because LILCO's Low Power Motion violates NRC regulations, no hearing thereon may be held, the Board's Low Power Order must be vacated, and LILCO's Low Power Motion must be dismissed.
B.
The expedited 29 day schedule for the low power pro-ceeding set by the Board in the Low Power Order is arbitrary-and deprives the County and the State of due process of law. -
LILCO's Low Power Motion raises a host of detailed factual is$ues concerning the reliability of the LILCO offsite AC power system.
That system is comprised of. multiple, interconnecting parts, including mobile diesels, gas;_ turbines at several loca-tions,-transmission lines, and interconnections with the New York Power Pool and ' the New-Eng1'and power grid.
To prepare for-
- a. hearing on LILCO's. unprecedented low power proposal, the County and State must:
(i) retain additional expert-consul 1 tants;;(ii) conduct discovery (through requ'ests for documents,.
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depositions, and site visits) to understand precisely the details of the LILCO proposal; (iii) conduct independent studies and analyses of the LILCO proposal to test its reliability; (iv) review and analyze documents obtained by dis-covery from LILCO and the NRC Staff, depositions, and the Staff SER; (v) prepare direct testimony to document the results of
'the County and State experts' review and work; and (vi) prepare witnesses for examination at the hearing and prepare for cross-examination of LILCO's and the Staff's witnesses.
The Board's schedule is grossly inadequate.
The Board allowed a total of 9 days for all discovery (items (i), (ii) and (iii) above), 4 days to prepare direct testimony (items (iv) and (v) above), and 4_ days to prepare witnesses for trial and to prepare cross-examination (item (vi) above).
On its t
i face, this schedule deprives the County and the State of due process of-law.
The necessary preparation cannot possibly be l
completed in such a short period, a period which' includes only l
11 week days, Palm Sunday,: Good Friday, Easter, and Passover as
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well.
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The Board provides no justification for its expedited schedule.
Neither LILCO nor.the Staff, both of which urged un-realistically short schedules, explained why such extreme.
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a expedition was required.
In contrast, the County and the State of New York provided detailed unrebutted explanations of why such a schedule would cause them severe prejudice.
Thus, there was no rational basis upon which the Board could fairly adopt its schedule.
Accordingly, the Board should immediately vacate the Low Power Order. If the Board fails or refuses to vacate the Low Power Order, the Board should immediately stay the Low Power Order and certify these issues to the Commission for its prompt decision.
If the Board rules against the Joint Objections, such ruling and the Low Power Order should be referred forth-with to the Commission and the Low Power Order should be stayed pending a determination by the Commission.
By service of these Objections on the Commission, ' the County and the' State are re-questing - the Commission to direct the certification of these issues to it.
There are compelling reasons for the Commission to' review immediately the Low Power Order.. First, the LILCO Low Power Motion is the first time in' history that'a nuclear-plant is proposed to be operated without any onsite AC power system -- a radical departure from~NRC regulations.
The Licensing Board has ' in. this unprecedented case asserted : the authority. to e:
eliminate the requirements of GDC 17, where no exception to or waiver from those requirements has been requested pursuant to Section 2.758.
The Commission should provide its guidance at the outset whether such a scheme merits even the most prelimi-nary consideration.
Second, the unjustified schedule adopted by the Board pre-cludes an adequate hearing for Suffolk County and New York State, and represents a radical departure from schedules established in other proceedings.
This schedule suggests that fairness and public safety are being sacrificed to aid LILCO in addressing its severe financial difficulties.
The Commission should itself rule on whether this proceeding on a unique license application, which permits a total of 17 days from the opening of discovery to the hearing, is unfair and denies the County and the State due process of law.
Finally, as detailed in Part II, the events leading to the Low Power Order are highly unusual and suggest the possibility of the successful personal intervention of Chairman Palladino to influence the quasi-judicialflicensing proceedings.
The County and the State believe that the shadow cast on the fairness of this proceeding by these events can be lifted, if at all, only if the Commission takes charge and vacates the. Low Power Order. -
a II.
Factual Background 1.
On January 27, 1984, Suffolk County filed with a Licensing Board contentions challenging the adequacy of the onsite emergency power system at the Shoreham nuclear plant --
namely, three emergency diesel generators ("EDGs") manufactured by Transamerica Delaval, Inc. ("TDI").
See Suffolk County's Motion to Admit Supplemental Diesel Generator Contentions (January 27, 1984).
These contentions, contending that the EDGs are over-rated and undersized, poorly de' signed, inade-quately manufactured, and not constructed in accordance with the quality assurance requirements of the NRC regulations, sup-plemented and subsumed existing Suffolk County EDG contentions limited to the issues of cracked cylinder heads and excessive vibration.
2.
LILCO opposed admission of the EDG contentions, and instead urged that the Board litigate the adequacy.of selected components of the EDGs in the sole context of fuel load and low power testing.
See LILCO's Response to Suffolk County's Motion to Admit-Supplemental Diesel Generator Contentions (February 7, 1984).
LILCO argued first, that at low power operation of Shoreham only one EDG at well below its power rating would be needed in the event of a LOCA during loss of offsite electric power, and second, that LILCO's offsite AC power system was so reliable that less stringent requirements should apply for the adequacy of the onsite AC power system.
As evidence of the reliability of its offsite AC power system, LILCO referred to (a) LILCO's interconnection capacity with the New York Power Pool and with the New England power grid, (b) the four 138 KV circuits and three 69 KV circuits supplying offsite electric power to Shoreham, (c) the availability to Shoreham of power from ten gas turbines at Holtsville, (d) other offsite gas tur-bines east of Shoreham, and (e) a 20 megawatt gas turbine to be installed at Shoreham (but not qualified for nuclear service).
3.
The NRC Staff supported the admission of the County's new EDG contentions and opposed LILCO's arguments that
" enhanced" offsite power could substitute for deficient onsite AC power.
See NRC Staff's Response to Suffolk County's Motion to Admit Supplemental Diesel Generator Contentions (February 14, 1984).
The Staff stated:
In view of the past faults and failures in these [TDI3 engines, the relationships between parts and soundness of the design, manufacture, and quality assurance process for the machine as a whole must be examined before consideration of the diesels could lead to any license for Shoreham.
Id. at 12.
Further, the Staff would give no credit to LILCO's.
offsite power system, includin-the gas turbines located at Shoreham, because " General Design Criteria 17 requires an inde-pendent, redundant and reliable source of on-site power."
Ibid., footnote 7 (Emphasis added).
The Staff indicated that it takes "no position upon whether applicant, upon a proper technical analysis, could or could not support an application for an exemption to allow it to go to low-power absent reliable safety-grade diesels."
Ibid.
(Emphasis added).
4.
The Staff's position that no license could be issued for Shoreham without an adequate onsite AC power system -- here the TDI EDGs -- was publicly stated by Messrs. Harold Denton and Darrell Eisenhut at an open meeting between the Staff and the TDI owners group on January 26, 1984.
Mr. Denton stated:
[W]e are not prepared to go forth and recommend'the issuance of new licenses on any plant that has Delaval diesels until the issues that are raised here today are
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adequately addressed.
Meeting transcript at 8.
Those issues included the numerous serious problems with TDI diesels at Shoreham and other facilities and significant quality assurance deficiencies at TDI.
Mr.
Eisenhut added that " prior to licensing, even a low power license," the Staff must have confidence that the TDI diesel problems have been solved.
Meeting transcript at 95-96 (Emphasis added).
l' 5.
On February 22, 1984, the Licensing Board held a con-ference of parties.
LILCO reiterated its arguments for a low power license based upon the supposed reliability of its
" enhanced" offsite AC power system together with the TDI onsite EDGs.
The Licensing Board then issued an oral order admitting the first three EDG contentions (but not the contention on quality assurance) and setting a schedule for litigation.
Tr.
21,~611 et seg.
The Board held:
4 Based on What we have before us now, there is no basis to proceed towards litigation that could possibly lead to a low power license in advance of a complete litigation of Contentions 1, 2 and 3.
Tr. 21,615.
The Board specifically did not preclude LILCO from making other proposals for a low power license meeting the
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standards of 10 C.F.R.
Section 50.57(c), including seeking a waiver of NRC regulations under 10 C.F.R.
Section 2.758, But whatever LILCO would' propose, it woulo have to meet our present finding, that unless we consider Contentions 1, 2,
and 3 on the merits, we do not presently have reasonable assurance that the TDI diesel generators can reliably be depended upon to start and generate electricity.
Tr. 21,617.
In short, Whatever LILCO might propose must not rely at all upon the TDI EDGs for any onsite emergency power.,
The Board also stated that any new proposal by LILCO for a low power license must show how any proposed power sources meet all applicable regulatory requirements, including seismic qualifi-cation, or Where such requirements are not met, Why an exemp-tion or waiver should be granted under Section 2.758.
See Tr.
21,632.
6.
The Licensing Board's February 22 order clearly stat-ed that, short of a new acceptable proposal from LILCO meeting the requirements set by the Board, litigation of the EDG con-tentions was a prerequisite to a low power license for Shoreham.
Tr.
21,615.
The schedule for that litigation pro-vided for a conference of the parties on May 10, after a dis-covery period of.aboututwo months, to determine subsequent pro-cedures.1/
Tr. 21,623.
Hence, the hearing.would be unlikely to start before June, and a decision could not be expecte'd before the Fall at the earliest.
1/
Suffolk County and the State -of New York have since re-questedLan. extension of that. schedule because most documents requested by the County during; discovery have not been produced.
See Joint Objections of Suffolk County and the State of New York to Board's Oral Order of.
-February 22, 1984, and Request for Revision.Thereof (April 10, 1984).
_ 10 _
7.
According to a memorandum dated March 20, 1984, from NRC Chairman Palladino to the other NRC Commissioners (the "Palladino Memo," Attachment 1 hereto), on March 9, 1984, the NRC Staff notified the Commissioners of " potential licensing delays" of 9 months for Shoreham.
The " delays" no doubt referred to the estimated time for the litigation of the EDG contentions, since the duly established Licensing Board had ruled that unless and until a favorable decision for LILCO was provided on those contentions, no low power license could be issued for Shoreham.
8.
The Palladino Memo, which followed reports in Newsday (February 24, 1984) that LILCO's chairman had met with the NRC Commissioners, sfated that on March 16 Chairman Palladino had -
met. with members of the NRC Staff, including ' lawyers and " Tony.
Cotter" -(B.
Paul' Cotter, Jr.,
the NRC's Chief Administrative Judge), to discuss the " delay" in the. licensing of Shoreham.'
l The Memo proposed that in order to1" reduce, the delays at j
Shoreham" the Commission should " consider a proposal from OGC
[ Office of General-Counsel] for an expedited hearing on the f
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diesel problem,'or proposals.for other.possible actions so that at least a. low power' decision might be~possible while awaiting-resolution-of the emergency planning issue. LI have asked the s
OGC to-provide a paper on.this subject soon."
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L 9.
Also on March 20, 1984, LILCO filed with the
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Licensing Board a proposal for a low pcwer license, styled as a Supplemental Motion for Low Power Operating License (March 20, I985) ("LILCO's Low Power Motion").
There LILCO made essen-
-tially the same arguments for a low power license that the t
- s Board had previouel rejected, except that LILCO added that it also intends to install at Shoreham four mobile diesel genera-tors, not qualified for nuclear service, to further " enhance" the AC electric pcwer system.
Several affidavits were attached
.to the Motion.
10.
On March 22, the secretary to the Licensing Board's 1
-y chairman ~ telephoned the County's counsel to suggest a telephone conference to discuss when the parties would be prepared to respond to LILCO's Low Power Motion, and it was agreed that
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preliminary views on scheduling would be submitted by the copnty by Monday, March 26.
The State of New York and the NRC
' Staff indicated that their preliminary views would be filed by N:
r March 30.
11.
On March 26, 1984, the County filed Suffolk County's Preliminary Views on Scheduling Regarding LILCO's.New Motion
( the " County's Preliminary Views," a copy of which is Attach-ment 2 hereto).
The County's Preliminary Views made the i
-following major points: !
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(a)
The County requires more than the normal ten-day period to respond to LILCO's Low Power Motion, because it raises many new, complex, factual issues.
To respond the County must retain appropriate experts to analyze those issues.
See the County's Preliminary Views at 1-4.
(b)
Analysis of those factual issues will first I
require the County to obtain substantial infor-mation through informal discovery.
See the County's Preliminary Views at 4-6.
(c)
Additional time is required to address regulato-ry legal issues.-
See the County's Preliminary Views at 7.
1 (d)
A number of threshold issues should be addressed before the merits-of LILCO's_ Low Power Motion-l should be' considered, including:
(i) the-Motion does not meet the criteria enunciated by the Licensing l Board.-on February 22 for~a new low t.
f power proposal, because it does notfstate how11t meets regulatory requirements or why_a. waiver t
therefrom should be granted; (ii)-the Motion f
I relies upon pcVer ouCces located at the,
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Shoreham site which are not seismically
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qualified, as required, but LILCO has sought no waiver of the seismic requirements:
(iii) contrary to the Board's February 22 order, the Motion appears to rely upon the TDI EDGs; (iv) LILCO's arguments for referral or cer-tification of its Motion to the NRC Commissioners contain false and misleading as-sertions which the County wishes to contest; and (v) LILCO's Low Power Motion is such a radical change from LILCO's initial June 8, 1983 motion for a low power license that it should be treated as a new application.
See the County's Preliminary Views at 8-12.
The County requested a conference of counsel-for all parties to L
' discuss all of the procedural matters affecting the EDG litiga-tion and LILCO's Low Power Motion.
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L.L 12.
On March 28, 1984, the State of New York filed its l'
preliminary views on.LILCO's Low Power Motion.
See Preliminary
(
~ Views of Governor Cuomo, Representing the State of New York,.
Regarding LILCO's So-Called Supplemental Motion for a-Low Power:
Operating; License (Attachment 3 hereto). 'The State supported iy
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.the views expressed by Suffolk County and urged that LILCO's Motion be summarily dismissed.
13.
On March 29, 198/, the NRC Staff held an open meeting with LILCO to discuss LILCO's Low Power Motion; a transcript was made of the meeting.
At that meeting LILCO expressly stat-ed that the 20 MW gas turbine and the four mobile diesel gener-ators being installed on the site at Shoreham ".
are part of the off-site power system."
Meeting transcript at 41-42 (Museler).
LILCO clearly indicated that, notwithstanding the Licensing Board's February 22 admonition that no low power pro-posal could consider the TDI EDGs, LILCO was relying solely upon the TDI diesels for onsite AC electric power:
MR. HODGES [NRC Staff]:
[I]t's my understanding that the ruling of the Board says assume TDIs don't exist, so no credit basically for the TDIs as to what
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your onsite power source [is] for the loss of offsite power.
MR. MUSELER [LILCO]:
No.
Our view of what the Board said is that we had to' provide reasonable assur-ance that reliability of the onsite power sources, the TDIs, was sufficient to allow operation up to 5 percent.
Meeting transcript at 43 (emphasis added).
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MR. SHERON [NRC Staff]:
In order to comply with the regulations, I said, just the appropriate GDC, which ap-peared at first blush like 1, 2,
4 and 17
-- some credit for the existence of TDI diesels on site and some proposed reliability must be assumed for those die-sels.
You can't assume a zero relia-bility for the diesels and still say, I meet the regulatiens.
MR. MUSELER:
You can' t assume that they are not there because the regulations say that you have to have an onsite power source meeting 4
those requirements.
. We do not assume that they are not there.
We assume that they are there and they have to be opera-tional in order to meet the tech specs.
Meeting transcript at 46 (Emphasis added).
On March 30, 1984, the County sent the March 29 meeting transcript to the Board, brought the foregoing matters to the Board's attention, and urged that because LILCO's Low Power Motion did not comply with l
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. General Design Criterion 17, it should be summarily dismissed.
t to Suffolk County's Preliminary Views on
.See Supplement Scheduling Regarding.LILCO's New Motion (March 30, 1984).
The relevant portions of the March 29 meeting transcript (pp.
41-51) are-attached as Attachment.4 hereto.
1 I-14.
On March'30, 1984, the NRC Staff responded to LILCO's l
? Low Pnwer. Mntion,'
'In a' complete reversal from its position i
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6" issued for Shoreham until the TDI diesel problems are solved, the Staff stated:
If the protection afforded to the public at low-power levels without diesel generators is found to be equivalent to (or greater than) the protection afforded to the public at full-power with approved diesel genera-tors, the Staff submits that LILCO's motion should be granted.
NRC Staff Response to LILCO's Supplemental Motion for Low Power Operating License (March 30, 1984) (the " Staff Response") at 4.
The Staff Response did not mention the position taken by LILCO at the March 29 meeting.
Further, without addressing any of the County's and State's concerns regarding the time required to respond to LILCO's Low Power Motion, the Staff called with-out explanation for an expedited hearing on the Motion with all testimony to be filed by April 23, 1984.
The Staff also suggested that the Board consider a " summary resolution" of LIDCO's Low Power Motion to permit fuel load'and cold criti-cality testing.
Staff Response at 5, footnote 3.
15.
On March'30, 1984, Chief Administrative Judge Cotter issued an order establishing a new licensing' board "to hear and decide" LILCO's Low Power Motion.
The order did not say that-the proceeding should be expedited.- The order.noted the "ad-vice" from the Licensing Board which has jurisdiction over all
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a non-emergency planning matters (the Board dealing with onsite power and EDG matters which had rejected LILCO's earlier low power proposal) that "two of its members are heavily committed to work on another operating license proceeding."
- However, according to a report in Nucleonics Week, April 5, 1984:
Appointment of a board to hear Lilco's motion for a low-power license at Shoreham
[was] his idea, Cotter said through an agency spokesman.
However, he said, Palladino's staff was " aware" of his deci-sion.
16.
On the 'same day, March 30, the parties were notified by telephone that the new Licensing Board (this Board) would hear oral arguments on April 4, 1984, on LILCO's Low Power Motion.
The telephonic notice stated that this Board was
" established to hear and decide the motion on an expedited basis." This oral notice was confirmed by this Board's Notice i
of Oral Arguments (March 30, 1984), which stated that at the oral argument this Board would hear the issues raised by the parties "in their filings, as well.as a schedule for their expedited consideration and determination" (Emphasis added).
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i 17.
In response,-on April 3, 1984, the County filed j
Suffolk County's Comments on Notice of Oral Arguments'(Attach-ment 5 hereto), pointing out that "there is no basis for any.
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expedited process," and that this issue should be addressed by the parties at the oral argument.
The County repeated its view that LILCO's Low Power Motion should not be argued on the merits until the County has an opportunity to retain experts and conduct adequate discovery, as discussed in the County's Preliminary Views.
18.
On April 3, 1984, the State of New York filed a motion in opposition to this Board's ruling that LILCO's Low Power Motion would be given expedited consideration.
See Motion by Governor Cuomo to Delete Provision in this Board's Order of March 30, 1984, Mandating Expeditious Consideration and Determination of Issues Raised in LILCO's Supplemental
. Motion (Attachment 6 hereto).
The State argued that expediting LILCO's Low Power Motion is arbitrary and would deny the State due process of law.
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19.
On April 4, 1984, (according tola letter of April 12, 1984, to.NRC Chairman Palladino from Congressman Edward J.
Markey, Attachment J7 hereto), Chairman Palladino circulated a follow-up memorandum to the other Commissioners that included a pro-posed order drafted by Judge Cotter and a paper written by your staff that would have set forth an expedited schedule in which the Shoreham low power licensing proceeding-would be completed in thirty to sixty days.
20.
On April 6, 1984, following the April 4 prehearing conference of counsel, this Board issued its Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for Low-Power Operating License (the " Low Power Order").
The Low Power Order set an expedited schedule for a hearing on LILCO's Low Power Motion which requires the hearing to terminate by May 5, 1984, which is 29 days after the date the Low Power Order was issued.
III. The Low Power Order Must be Vacated and LILCO's Low Power Motion, Dismissed A.
The Hearing Scheduled by the Board is Prohibited by NRC Regulations.
At the April 4 conference, counsel for Suffolk County asked the Board to dismiss LILCO's Low Power Motion (see Low Power Tr. 48-51) because:
(a)
General Design Criterion 17 expressly requires that there be both "an onsite electric power system and an offsite. electric power system.
to permit functioning of structures, systems, and components.important to safety."
The onsite electric power system must function " assuming the other [offsite] system is not functioning 1...
(b)
The Shoreham plant has no onsite electric power O
system, because the TDI diesels are presumed not to operate and may not be considered, as conceded by LILCO and held by the Board's February 22 oral order.
See Low Power Order at 3-4; Part II, paragraphs 5 and 13, supra.
(c)
LILCO's Low Power Motion, which seeks an operating license for a nuclear plant with no onsite electric power system, is therefore a direct attack upon GDC 17.
Such a challenge is a violation of 10 C.F.R.
Section 2.758, which provides that except pursuant to the specific procedures of that Section for a waiver or exception,
[A]ny rule or regulation of the Commis-sion, or any provision thereof, issued in
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its program for the licensing and regula-tion of production and utilization facilities, shall not be subject to attack by way of discovery, proof, argu-ment, or other means in any adjudicatory proceeding involving initial licensing subject to this subpart (d)
Because LILCO's Low Power Motion is an argument in an adjudicatory proceeding for initial licensing directly attacking the provision of !
w GDC 17 that a plant must have an onsite electric power system, and because LILCO has not properly sought a waiver of or exception to that provision, the Motion must be dismissed and can-not be heard further by this Board.
This Board erred in rejecting the County's request to dismiss LILCO's Low Power Motion and in scheduling further pro-ceedings on the Motion, for the following reasons:
(1)
This Board states that the GDC 17 requirements govern full power operation and implies that those requirements are not applicable to or may be reduced for low power operation.
Low Power Order at 11-12.
The Board does not cite a single au-thority to support this novel interpretation.
In fact, nothing in the NRC regulations or cases suggests that the GDC 17 re-quirement?for an onsite electric power system is not applicable i
.to,.a nuclear plant operating at.less than full power.
i The Introduction to the General Design Criteria provides l
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lthat they. " establish minimum requirements for the principal design criteria for water-cooled nuclear' power! plants i
There is no suggestion that these minimum requirements, as for
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.do not apply.during low power l
an.onsite electric' power' system, operation.
In fact, GDC.17 clearly does apply during low power i
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i operation.
LILCO itself has admitted that the regulations j
require onsite AC power for low power operation (see Mr. Mus-seler's statement to the Staff, Part II, paragraph 13 supra).
LILCO also admits that during five percent power operation, an accident can be postulated that would require AC power to keep the core cooled and the fuel within design limits.
LILCO's Low Power Motion at 21-22.
GDC 17 specifies that there must be an offsite and an onsite AC power system, such that if one is not functioning -- and GDC 17 specifies that it must be assumed l'
that one does not function in an emergency -- the other is adequate to meet the safety functions.
At Shoreham, one starts L
with zero onsite AC power; therefore, if offsite AC power is lost, there is no AC power.
LILCO has thus asked this Board to 4
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eliminate the requirement of GDC 17 that there must be onsite i
I' AC power and to eliminate the requirement of GDC 17 that one must assume that offsite AC power will be lost.
However, since
.LIDCO has failed to comply with 'Section 2.758, the Board is 4
barred from even hearing LILCO's Low Power Motion.
l (2). The Board ruled _ that a licensing board has the power to " harmonize" the requirements of GDC 17 and other GDCs- (and presumably other NRC-regulations) with the provisions of 10 C.F.R.
Section 50.57(c) for low power licenses, by reducing or eliminating regulatory requirements = for a nuclear plant i '
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i operating at less than full power.
Low Power Order at 11-12.
The Board states i
The very purpose of this regulation
[Section 50.57(c)] is to permit motions for low-power operations where, as here, the licensing proceedings are not completed be-cause of pending hearings on the satisfac-tion of all of the requirements of GDC-17, among others.
Low Power Order at 12.
Again, the Board does not cite any au-thority to support its conclusions.2/
In fact, there is no conflict between the requirements of GDC 17 and the provisions of Section 50.57(c) in this-case 2/
The San Onofre and Diablo Canyon decisions relied upon by the Staf f and perhaps considered by the Board are not on point.
Each involved regulatory requirements for emer-gency planning that had to be satisfied for low power operation.
In San Onofre, the Board specifically relied on 10 C.F.R.
$ 50.47(c)(1) to permit low power operation where all regulations were not met.
Section 50.47(c)(1)
/
is a specific exemption provision for emergency planning, which has no applicability to the instant case.
- Indeed, the San Onofre Board termed Section 50.47(c)(1) an " escape clause."
See Southern Calif. Edison Co. (San Onofre Nu-clear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 193 (1982).
In Diablo Canyon,.the Board also relied upon Section 50.47(c), as well as on SECY-81-188-(which was found to be an express Commission directive as to low power emergency planning) as its basis for finding that not all of the emergency planning regulations applied at low power.
See Pacific Gas & Elect. Co. (Diablo Canyon Nuclear Plant, Units 1 and 2), LBP-81-21,-14 NRC 107, 122 (1981)..
which can be " harmonized."
Section 50.57(c) eliminates any potential conflict by requiring a licensing board to make a finding as to matters in controversy under Section 50.57(a)(2) that "[t]he facility will operate in conformity with the appli-cation as amended, the provisions of the Act, and the rules and regulations of the Commission."
In the instant case, the very issue in controversy before this Board and before the Licensing Board hearing the County's diesel contentions is whether Shoreham meets the onsite emer-gency power requirements of GDC 17.
Therefore, this Board could not make a finding that Shoreham can operate with no onsite AC power system in conformity with the application and NRC regulations, both of'which through GDC 17 expressly require an onsite electric power system.
(3)
In attempting to reconcile the provisions of Section 50.;57(a) with its ruling, the Board states:
The operation of the facility in conformity with the rules and regulations of the Commission includes the possibility of low-power operations equal to the full-power requirements of GDC-17, provided that (as the Staff states), it can be found by the Board that there is reasonable as-surance that the low-power activities can be conducted with the protection to the public at least equal to-the protection af-forded at full-power operations with the approved diesel generators. '
Low Power Order at 12.
This statement, again without the support of any authority, would permit any licensing board to amend the NRC regulations if the board decided that the public is nevertheless protected.
Applying the Board's statement to the instant case, the argument is (i) Section 50.57(a)(2) requires Shoreham to operate in conformity with GDC 17, in that it must have an adequate onsite electric power system; (ii) however, Shoreham's operation at low power without any onsite AC power system is equivalent to operation with an adequate onsite AC power system, if (iii) this Board finds that the pub-lic would nevertheless be protected to the same degree as if these were an adequate onsite AC system.3/
The NRC regulations constitute the standard Which defines whether public health and safety are protected:
if the regula-tions are satisfied, health and safety is deemed protectedt if 3/
Such a finding would not be possible in the instant case.
LILCO concedes that AC power would be necessary for postu-lated accidents during low power testing.
LILCO's Low Power Motion at 21-22.
Thus, a loss of offsite AC power, which must be assumed under GDC 17, would leave Shoreham with no AC power at all, since it lacks an onsite AC power system.
A plant operating at low power which has no AC electric power at all When needed in a LOCA cannot possibly protect the public to the same extent as a plant at full power operation which must have an adequate and reliable onsite and offsite AC power system so that if one fails, the other will be operable in a LOCA.
I the regulations are not met, health and safety are deemed not protected.
Neither this Board nor any other licensing board has carte blanche to eliminate provisions of the NRC regula-tions simply because the motion before it is made under Section 50.57(c).
Rather, the Commission has established a specific 4
procedure in Section 2.758 for obtaining exceptions to or waiv-ers of regulations.
That procedure requires a decision by the Commission itself.
(4)
The Board violates normal principles of regulatory construction in ruling that Section 50.57(c) permits the wholesale waiver of NRC regulations.
As counsel for the State of New York argued at the April 4 conference, there is a specific regulation, Section 2.758, which provides for the only way waivers of or exceptions to NRC regulations may be ob-tained.
Section 2.758 is an exclusive procedurer neither it nor any other regulation states that regulations may also be l
waived by a licensing board pursuant to Section 50.57(c).
The purpose of Section 2.758 is obviously to prevent.a waiver of the regulations by other means, such as licensing boards inter-preting the intent of a regulation.
See Low Power Tr. 59-60 (Palomino).
- 27'-
There is no justification for the Board's strained inter-pretation of Section 50.57(c) to permit the waiver procedures to be circumvented in this case.
But it should be noted that those procedures take time and that the standard for a waiver of GDC 17 could not be met here.
Section 2.758(b) provides that:
The sole ground for a petition for waiver or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regu-lation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted.
(Emphasis added).
The purpose of the requirement of GDC 17 that a nuclear plant must have an independent, adequate and re-liable onsite electric power system is, as GDC 17 states, to provide the necessary safety function " assuming the other
[offsite) system is not functioning."
What are the "special circumstances" at Shoreham to show that requiring Shoreham to have an onsite AC power system would not serve this purpose 7 Ther " are none, and none have been pleaded by LILCO.
Further, requiring Shoreham to have an onsite AC power system must necessarily and by definition serve the purpose of GDC 17 -- to have a reliable AC power source onsite and able to.
function in the assumed event of a total loss of offsite power.
The standard of Section 2.758(b) is not whether some substitute for the requirements of GDC can be fashioned, as LILCO suggests in its arguments that Shoreham's " enhanced" offsite electric system could safely be restored if lost during low power operation.
Rather, the standard, as quoted above, is that be-cause of "special circumstances," at Shoreham, the purpose of GDC 17 -- having an onsite AC power system -- would not be served by having an onsite AC power system at Shoreham.
LILCO simply cannot meet this standard.
Moreover, the procedures under Section 2.758 for obtaining a waiver take time.
The petition, accompanied by an affidavit supporting the " sole ground" for a waiver,. must be filed with the licensing board.
If the presiding officer. determines that a prima facie case has been made, the matter must be certified to the Commission for determination, and the~ Commission may l
direct that further proceedings be held to assist its decision.
Clearly, then,.a correct application of Section 2.758 to LILCO's Low Power Motion would not, as the Palladino Memo states, " reduce the' delays at Shoreham" or constitute action "so that at -least a' low power decision might be possible ' while
~
awaiting resolution of the-emergency planning' issue."- See
. ~. -...
-~ -
.=
Part II, paragraphs 7 and 8, supra.
But by adopting its unprecedented interpretation of Section 50.57(c) as permitting the licensing board to eliminate NRC regulations, this Board adopted "an expedited schedule in which the Shoreham low power licensing proceeding would be completed in thirty to sixty days," as reportedly urged in Chairman Palladino's follow-up memorandum.
See Part II, paragraphs 19 and 20, supra.
This Board should now vacate 'the Low Power Order and dismiss LILCO's Low Power Motion for violating 10 C.F.R.
Section 2.758, in that LILCO's Motion attacks the requirement of GDC 17 for an adequate and reliable independent onsite l-electric power system.
B.
The Expedited Schedule Set by the Board is.
Unjustified, Prejudicial, and Denies the County and the State Due Process of-Law.
The Low Power Order, issued on Friday afternoon, April 6, 1964, set'the following 29 day expedited schedule for proceed-i ings:
(a)
Discovery of documents and taking of depositions to commence immediately and end on April 16.
This 9-day period encompassed 5 business days and two weekends.
(b).
The NRC Staff stated that its supplemental SER
.is to be issued on April 19. The. SER' is the 4
Staff's. evaluation'of LILCO's technical proposal for operating a nuclear power' plant,~for the first time'in the history,.with no onsite
. electric; power system.
J
.. l 4
rm -m.
2
(c)
The next day, Good Friday, April 20, the County's and the State's direct written testimo-ny must be filed.
Such testimony should be written by expert consultants of the County and the State and contain their written opinions on the issues in contention, based upon their analyses of LILCO's Low Power Motion, supporting affidavits and information supplied by LILCO, documents obtained from LILCO and the NRC Staff through discovery, depositions taken of LILCO and Staff experts, and the Staff SER.
(d)
April 24 -- The hearing commences on Long Is-land.
This gives the County and the State Easter weekend and Easter Monday to review and analyze the written testimony of LILCO and the Staff to be filed on Good Friday, to prepare the County's and State's witnesses for the hearing, to prepare for cross-examination of LILCO's and the Staff's witnesses, and otherwise to prepare for trial.
(e)
The hearing must end on Saturday, May 5.
The hearing is scheduled for Saturdays, and runs for 11 days from April 24 through May 5, with a recess only on Sunday, April 29.
In setting the foregoing schedule, the Board stated:
We find that.tdue expedited schedule set forth below will not prejudice any party to this proceeding.
Low Power Order at 16.
There are absolutely no grounds to support ~ this finding, and the evidence on the record is pre-cisely contrary.
i (1)
Before this Board was established, the County filed on March 26, with the Licensing Board which then had jurisdiction over low power and onsite electric power issues at-Shoreham, the County's Preliminary Views on'LILCO's Low Power
m 1
Motion (Attachment 2).
As described in Part II, paragraph 11, supra, the County's Preliminary Views listed many of the new factual issues raised by LILCO's Low Power Motion, set forth in three pages examples of the information which the County would need to respond meaningfully, and stated that significant time would be required to retain expert consultants, conduct discov-ery, and permit the review and analysis of material infor-mation.
(2)
This Board was established on Friday, March 30, and that same day ' telephonically issued its order for the April 4 conference, stating for the first time that it would decide LIL'CO's Low Power Motion on an " expedited" basis.
See Part II, paragraph 16, supra.
On the following Monday the County filed its Comments ( Attachment 5), objecting that there is no basis for expedited treatment, reiterating the points made in the County's Preliminary Views and the need for substantial discov-ery, and requesting that the Board direct the parties to address any justifications for an expedited proceeding at the April 4 conference.
See Part II, paragraph 17, supra.
(3)
Also on April 3, the State of New York filed its Motion by Governor Cuomo to Delete Provision in this Board's Order of March 30, 1984 Mandating Expeditious Consideration and
Determination of Issues Raised in LILCO's Supplemental Motion (Attachment 6).
That Motion noted that there are no reasons justifying " expedited consideration and determination" of LILCO's Low Power Motion, and argued that without such justifi-cation New York State would be denied due process of law.
See Part II, paragraph 18, supra.
(4)
At the April 4 conference this Board did not order or permit any discussion of the reasons for expedited treatment of LILCO's Low Power Motion, and no reasons were given by any parties to justify anything other than normal judicious proce-dures.
Without any evidence that an expedited schedule would be necessary or desirable, this Board asked the parties to give their proposed schedules, after first warning:
We'll be discussing potential scheduling, and I will tell you we're considering a very tight, expeditious in the sense that this is a limited focus matter.
If we get
/
.into it, we don't intend to have a lot of winding up in the ballgame.
Low Power Tr. 97.
(5)
LILCO proceeded to propose its schedule.
This Board stated in the Low Power Order (at 12), "LILCO suggested a time frame in which testimony would be filed by all the parties on April 17 or 19, 1984, and hearings would commence on April 24." -
s The transcript of the conference shows that this Board assisted LILCO in propnsing such an early hearing date.
Mr.
- Earley, counsel for LILCO, indeed proposed that " testimony be filed by all parties on April 17th or 19th," keyed to the Staff's SER preparation date, which, at that time, he thought was probably April 19.
Low Power Tr. 99.
Mr. Earley said:
Seven days later [ April 24 or 26], the parties ought to have an opportunity to reply, and that seven days after that [May 1 or May 33, any evidentiary hearings ought to begin JUDGE MILLER:
Let's get down to dates on what you're proposing so I can follow you.
April 17th or 19th, which we'll discuss in a moment, all parties simultaneously file written testimony.
Is that correct?
MR. EARLEY:
Yes, sir.
JUDGE MILLER:
Okay.
What's your next date?
MR. EARLEY:
The next date is April 24th.
f JUDGE MILLER:
What day of the week is that?
MR. EARLEY:
That's a Tuesday.
JUDGE MILLER:
Okay.
What happens then?
MR. EARLEY:
The parties would have an op-portunity to file a written reply to the testimony filed the week before.
JUDGE MILLER:
Why are you going to do that?
You're going to do that at a trial or a hearing.
You're putting in an unnec-essary step in there, as near as I can make it out.
You all file your proposed written testinony the 17th or 19th of April.
The next step isn't to look at your navels or talk to each other or have another go-round.
MR. EARLEY:
Judge, that's fine with us, then.
A week later we could start hear-ingst it would be April 24th for the start of hearings.
JUDGE MILLER:
Okay.
That's LILCO's pro-posal?
MR. EARLEY:
Yes, sir.
Low Power Tr. 100-101.
It appears that this Board persuaded LILCO to shorten its proposed time for commencement of the heering by 7 to 10 days.
LILCO made no attempt to explain or justify its unusually expedited proposed schedule, and the Board did not ask LILCO to do so.
However, later in the con-ference, after counsel for New-York State objected to the 4
" undue hasty schedule" because Shoreham's electricity is not needed for ten years, LILCO will not be able to operate Shoreham commercially for years because of pending litigation, and LILCO's serious financial situation should not be consid-ered by the Board, (see Low Power Tr. 119-120), Mr. Reveley at-tempted to respond for LILCO:
MR. REVELEY:
Judge Miller, if you want to listen to it, I'll be delighted to respond to the rhetoric we've just heard about un-fairness, lack of need, unjustifiable haste e
e JUDGE MILLER:
We don't want to get into any matters extraneous to this record.
MR. REVELEY:
I think we've just heard, sir, a good many.
I will respond to them if you wish.
JUDGE MILLER:
No, don't wish because I don't wish to encumber thi's record with extraneous comments about financial situa-tions or need for power or matters of that kind which, in our judgment, the Board's judgment, are absolutely not relevant to this limited type of proceeding.
Low Power Tr. 120-121.
It therefore appears that the Board considered matters bearing upon whether or not the hearing should be expedited to be " extraneous".
(6)
The NRC Staff proposed that testimony be filed by the County by April 23 and the hearings begin at the end of April.
The Staff made absolutely no attempt to explain or justify its unusually expedited proposed schedule, and the Board did not ask the Staff to do so.
(7)
Unlike LILCO and the NRC Staff, Suffolk County explained and justified its proposed schedule.
First, the County suggested, as it had in the County's Preliminary Views (Attachment 2) and in its Comments (Attachment 5), that the issue of GDC 17 should be briefed by all parties, with the County's brief due by April 11.
Low Power Tr. 109.
Counsel a
for New York State had also requested that this issue be briefed.
Low Power Tr. 67.
The Board ruled against any such briefing.
Low Power Tr. 111.
Next, counsel for the County proposed a schedule:
MR. DYNNER:
The following schedule is what we propose.
As indicated in our prelimi-nary views, the County will need an oppor-tunity to retain experts on the variety of issues, new issues, that are raised by LILCO in its motion, and for those experts to review the testimony, or rather, the submission by LILCO.
We believe that that would be a period of 30 days.
So we're talking -- I'm going to try to convert this for you -- if we're going to assume -- I don't know when the Board is going to rule, so I'm going from the date that you will rule on the GDC-17 issue JUDGE MILLER:
I think we'll rule today orally.
You're going to get an answer today and we'll follow it up by an order probably tomorrow.
But we're going to go ahead.
There's no sense in flogging a horse, especially a dead horse.
l MR. DYNNER:
All right.
Let me go on then and try to put this into perspective, al-though.
JUDGE MILLER:
So your request for 30 days for experts will be denied, if you're again making that in the form of a motion.
Low Power Tr. 111-12. (
The Board not only denied the County the opportunity to g
l explain why it needed 30 days to retain expert consultants and have them review LILCO's Low Power Motion and its attached af-fidavits; it also denied that portion of the proposed schedule without giving any reasons for its ruling.d/
The County then proposed a 56-day discovery period ending, May 30; the County was going to propose a 60-day discovery period following the 30-day period to retain experts, but was forced to revise its position when the Bord summarily and arbitrarily rejected the 30-day period.
The County fully justified the need for such a discovery period.
See Low Power Tr. 114-117.
Further, the County justified the provision in its proposed schedule for 4/
The lack of realism in the Board's schedule is highlighted by a matter which the Board entirely ignored.
Both in its Preliminary Views (at 5), and twice on April 4 (Low Power Tr. 88-89; 122-23) the County raised the question of the adequacy of security for LILCO's " enhanced" offsite AC power system.
The County, in fact, requested the Board specifically to specify the procedure by which security issues could be raised.
Low Power Tr. 122-23.
Even the Staff, in its March 29 meeting with LILCO, had raised questions concerning security.
March 29 transcript at 94-95.
The security issue is potentially significant, be-cause there clearly is no Part 73 low power exemption and because security arrangements may directly involve Suffolk County.
Yet the Board, despite the clear importance of this matter and repeated efforts by the County to bring it to the Board's attention, never even alludes to security matters in the Low Power Order.
The County and State ask again in these Joint Objections that the Board establish the procedures under which security issues are to be pursued.
o specification of issues (by June 15), which would include t
LILCO's financial ability to operate Shoreham and the technical capability of LILCO and its personnel.
Low Power Tr. 117.
i Neither LILCO nor the Staff rebutted the County's justifica-1 tions for its proposed schedule.
(8)
The County also specifically argued that it would be severely prejudiced by the " unfair" schedules proposed by LILCO and the Staff (which initially called for the hearing to begin later than the date set by this Board in the Low Power Order):
MR. DYNNER:
I think that in fairness, it's important that the -- if this Board rules today against the County's position, that licensing of a nuclear plant with no on-site emergency power is an attack on the regulations of the NRC -- if this Board denies that and goes forward with the hear-
- ing, I think it's incumbent that that hearing be fair, that that hearing give the County and the State of New York and the other parties ample opportunity to have sufficient information to make meaningful arguments so that this Board can make a reasoned and careful determination.
Our schedule we think, although tight, would give us that opportunity if LILCO were to cooperate with furnishing us the r
necessary information.
We believe that the Staff's schedule as_ proposed and that LILCO's schedule as proposed is completely unfair.
It does not take into considera-tion any of the factors that I have raised in discussion of our schedule.
fhfs is, as
~
I said before, a unique, an unprecedented i
attempt to license a nuclear power plant without on-site emergency power.
If you're !
s I
f
4 p
e F
going to go forward and hear that issue, i
then we are entitled to the kind of fair I
j t
and complete hearing that is postulated by the regulations of the Nuclear Regulatory f,
Commission and the Administrative Procedure Act, not some, what I regard from what I l'g heard just now from LILCO and the Staff, j.,
some slap-dash attempt to push this thing through at whatever cost and give no oppor-3 l
tunity for us to find oint the facts sur-rounding the LILCO motion,. and no opportu -
nity to collect adequate and present i
adequate testimony and have an adequate ablility to cross examine and have a fair and whole hearing.
JUDGE MILLER:
Anything further?
MR. DYNNER:
One moment, please.
(Counsel for Suffolk County conferring. )
MR. DYNNER:
I would, Judge Miller, like.to 7
add'one' point.
What we've heard today from L
LILCO and the Staff in terms of their pro-posed schedules is an extremely swift rush t
' to give a low power -license to the plant j
I without a single reason for such an j 'i '
incredibly expedited procedure.
The pacing h
~
r item, the issue at stake, is fairness to the hearing ~ and the safety of the facility and the pe'ople that are going to live. on Long.Islandiaround it.
There has not been-a single reason given by anybody in this room as to why it^is proposed to-rush with
[
such unprecedente3 speed to an unprecedent-s ed potential decision.
5
/-
l We don' t know of any reason other than.what j
we read in' the newspapers about LILCO's'fi-nancial situation.
That is not.something b~ fore'this Board; that issue should not be e
F considered in'this Board's formulating or l
c approving'any schedule.
The only issue is
/'-
L
,safetyr the only issue is a fair hearing.
i
.Thank you.
4 3
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i ct"y; 8
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- )
1/'
fs bi
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~_
Low Power Tr. 117-119 (Emphasis added).
i (9)
New York State joined in the comments of Suffolk County, agreed with the County's proposed schedule, and argued that no need had been shown for "an undue hasty schedule."
Low Power Tr.19-120.
l The foregoing is the only evidence on the record at the conference regarding the issue of an expedited schedule.
The Board has pointed out that "10 C.F.R.
$ 2.711 gives a presiding officer the power to reduce established time limits when there is good cause for so doing Low Power Order at 14 (Emphasis added).
In this case, however, there has been no showing of good cause to reduce the normal periods for discov-ery, specification of issues, prehearing conferences and sub-mission of testimony. -Indeed, there is no evidence to support an expedited hearing.
To the contrary, Suffolk County and New York State have made a detailed showing that there is no reason to expedite the proceeding on LILCO's Low Power. Motion, that a reasonable dis-covery period is-necessary in order to present their case, and that they would be severely prejudiced by:the expedited and un-justified schedules proposed by LILCO and the Staff.
The schedule established by:this-Board is even more expedited.
_ 41 _
.e Accordingly. there is no basis for the Board's finding "that i
the expedited schedule set forth below will not prejudice any party to this proceeding."
Low Power Order at 16.
In fact, Suffolk County and New York State maintain that the schedule is so arbitrary and unfair that, on its face, it constitutes a denial of a reasonable opportunity for the County and the State to prepare for the hearing and to be heard on the issue of a low power operating license for Shoreham.
Assuming arguendo that the Board was correct in ordering a hearing, it is clear that to prepare properly, a party must examine the reliability of each of the offsite AC power sources relied upon by LILCO.
That is, a party must obtain experts with necessary qualifications and then review and prepare testimony regarding all data pertinent to:
the 4 mobile diesels; the 20 MW and 50 MW gas turbines located at Shoreham, Holtsville-and else-where; the LILCO transmission system, including inter-l connections to the New York Power Pool and the New England power grid; and the-deta'ils of procedures and mechanical.de-vices for utilizing these power sources in an emergency at
?
Shoreham.
It is impossible for the County and the State to l
[
obtain experts, prepare discovery requests,~ review documents l
produced in' discovery, prepare testimony, review the testimony of other, parties, and prepare for the hearing in 17 days -- the
!x
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il 9.
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.. _ _ - _ -. -. _ =.
t period the Board allowed between opening of discovery and the date the hearing starts. 5/
Thus, the County and the State sub-I mit that the Board's schedule, on its face, deprives them of a
due process of law.
Actual attempts to comply with the Board's schedule have demonstrated that it is impossible.
The County has diligently proceeded to attempt to retain expert consultants and to carry on discovery.
Thus, the County expects to have three new experts (one company and two individuals) under contract by i
sometime this week:
the company to perform a reliability
{
analysis of the LILCO offsite power system; and the individuals to perform structural engineering analyses of how the LILCO AC power sources will~ perform in a seismic event.
The County's new experts, however, cannot possibly perform their-analyses by.
April 20.
Rather, once necessary document discovery is can-
~
pleted, the experts will need to carefully review the data, l
have site visits,,and-then perform their own analyses of the data.
Similarly, the-County's other experts -- for example,
~
the County's diesel consultant -- will'have to perform similar 5/
- The extreme shortness of.the Board's. schedule is shown_by
~
the fact that the NRC regulations provide for a minimum
~
' period of 15 days between the filing of: the written testi-mony and'tE~ commencement of-the hearing.
10 C.F.R.
Section 2.743(b).
43L-4 9
y -
rr-4e r &
w t -
w
,e,,,
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--aes+m-e.
analyses, which cannot begin until necessary documentary data i
are obtained.
The County has pursued its document discovery vigorously.
Within 5 days of the opening of discovery (i.e., on April 12),
the County was able to send document discovery requests to both LILCO and the Staff.
LILCO did offer to make many documents available for review at Shoreham and other locations.
(The Sta f f has not yet responded to the County's discovery re-quests.)
The County was unable to send expert consultants to carry on this review during the allotted discovery period of nine days; however, three representatives of t'he County's law firm did travel to Long Island to identify documents.
Their review indicated that there are thousands of documents in the categories requested by the County during the discovery period.
It is significant that LILCO did not object to any of the County's document discovery requests on grounds of relevancy.
l The County expects to begin receiving the documents it re-quested on April 16.
The County has therefore been unable to review and analyze relevant documents within the nine day dis-covery period, and hence has.not been able to take depositions during such period, since without first reviewing relevant.
documents, depositions would not be meaningful.
- I e
Based upon the volume of information disclosed to exist t
during the discovery period which has been permitted, it clear-ly is impossible for the County's experts to receive, review and analyze the thousands of relevant documents and the Staff SER, and prepare written testimony thereon, in the four days allowed between the close of discovery on Monday, April 16, and the testimony filing deadline of Good Friday, April 20.
In-deed, County consultants, if all gees well, will just be begin-ning their review of the thousands of documents by April 20.
Accordingly, it will similarly be impossible for the County to prepare adequately over Easter weekend and Easter Monday for the hearing to commence on April 24.
The foregoing demonstrates that the Board has established a schedule Which precludes the County and the State from being heard in any meaningful way, and Which accordingly violates the Administrative Procedure Act and deprives the County and the State of due process of law in violation of the Fifth Amendment-of the' United States Constitution.
i IV.
Remedies _ Requested by Suf folk ' County and The State of New York l
A.l.
Because LILCO's Low Power Motion attacks the 1^
provisions of GDC 17, in ' violation of 10 b.F.R. Section 2.758, S
l LILCO's Low Power Motion should be immediately dismissed and.
L..
=
the Low Power Order scheduling a hearing on the Motion should be vacated forthwith.
A.2.
Because the Low Power Order is unjustified, prejudi-cial, and deprives Suffolk County and New York State of due process of law guaranteed by the Fifth Amendment to the United States Constitution, the Low Power Order should be vacated forthwith.
B.
If the Board fails or refuses to vacate the Low Power Motion forthwith as requested herein, then, pursuant to 10 C.F.R.
Sections 2.751a(d) and 2.718(i), the Board should imme-diately certify to the Commission for its determination the following questions:
1.
Whether LILCO's Low Power Motion should be dismissed immediatel,y and the Low Power Order forthwith vacated because LILCO's Low Power Motion attacks the provisions of GDC 17, in violation of 10 C.F.R.
Section 2.758, as alleged herein by Suffolk County and New York State; and 2.
Whether the Low Power Order should be forthwith va-cated because it is unjustified, prejudicial to Suffolk County and New York State, and deprives,
f Suffolk County and New York State due process of law, as alleged herein by Suffolk County and New York State.
A prompt decision regarding these issues is necessary to prevent detriment to the public interest because, as shown herein, unless these issues are resolved in the County's and State's favor prior to the scheduled April 24 announcement of the hearing:
(i) the integrity of the NRC's regulatory scheme will be seriously compromised, and public confidence therein may be diminished; (ii) the constitutional rights of Suffolk County and New York State will be violated; and (iii) Suffolk County and New York State will be unable adequately to represent the interests of the people of Suffolk County and New York State in the scheduled hearing on important matters of public health and safety.
In addition, the matters raised I
he$ein would fundamentally affect the structure of the proceed-ing in a unique manner.
See Long Island Lighting Company l
(Shoreham Nuclear Power Station, Unit 1), 17 NRC 593, 598 l
(1983).
To our knowledge, LILCO's Low Power Motion is the l
first time in NRC history that an operating. license, whether for low or full power, may be granted for a nuclear power plant which has no onsite AC power system.
The legal questions raised herein are, to our knowledge, of first impression.
I w
n,--
i Moreover, the circumstances leading to the establishment of this Board and its Low Power Order are highly unusual.
For these reasons, Suffolk County and the State of New York request that the Board stay the Low Power Order and not commence the hearing pending the determination by the Commission of the cer-tified questions.
C.
If the Board fails or refuses to provide the relief requested in paragraphs A or B supra, then Suffolk County and the State of New York hereby move, pursuant to 10 C.F.R.
Section 2.730(f), that the Low Power Order and any ruling by this Board against the requests herein forthwith be referred to the Commission and that the Low Power Order be stayed pending a determination by the Commission thereon, for all of the reasons stated in paragraph B supra.
D.
Under 10 C.F.R.
Section 2.718(i), the Commission may-it$elfdirectthecertificationofquestionstoit for determi-nation.
In order to provide the Commission with the infor-mation necessary to consider whether it should so direct cer-tification, we are sending these-Joint Objections directly to the Commission and requesting that the Commission direct the
' certification to it of the questions set forth in paragraph B
-supra forthwith and stay the Low Power Order pending Commission.
determination of those questions. !
6 Respectfully submitted, 9
Martin Bradley Ashare Suffolk Country Department of Law Veterans Memorial Highway Hauppauge, New York 11788 f
Herbert H. Br/wn /
Lawrence Cod Lanpher Alan Roy Dynner Douglas J.
Scheidt KIRKPATRICK, LOCKHART,
- HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County
/
Fabian G.
Palomino
(
Special Counsel to the Governor of New York State Executive Chamber Room 229 Capital Building Albany, New York 12224 Aptil 16, 1984' Attorney for-Mario M.
Cuomo Governor of the State of New York-l l i i
i NUCLEAR REGULATORY COMMISSION
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WASHINGTON, O. C 20!$$
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March 20, 1984 O n Al w. A N KT_MOU.NDUM FOR:
Commissioner Gilinsky Commissioner Roberts Commissioner Asselstine Co==issioner Bernthal 752 FROM:
13cnzio J. Palladino
(
SU5 JECT:
ICENSING DELAYS On March 9, 1984, the EDO notified us that potential licensing delays, as of the end of February, are 9 months for Shoreham and 5 months for Limerick.
On March 16, I had a status and scheduling meeting with the staff, OGC, OPE, and Tony Co::er to discuss these and other possible delays.
I: turns'out that, beyond Shoreham and Limerick, delays may arise for Waterford and Comanche Peak.
.These possible delays are in addition to the difficulties being experienced at Diablo Canyon, Byron, Midland, Palo Verde, and Grand Gulf.
Briefing sheets were provided on allegations and on.the problems at a number of plants, and these were distributed to your offices to assist in understanding the problem and nrecaring for the B.evill hearing.
'I suggest that_the Cbmmission hold a special meeting to disc'ss the problems associated with the foregoing u
plants.
I believe it is important that we have such a meeting in the near' future so we can focus better-on the issues.
We can address this at agenda planning.
Identified,
below are some thoughts that we might discuss at the meeting.
So _that we can take steps to both (a) reduce the delays at.
Shoreham and Limerick that have been officially reported to us by the EDO, and (b) reduce the po.ssibility that delays at other plants may arise or, if they arise, be extensive, I propose the following:-
For Shoreham, Wave the-Commission consider a proposal from OGC for an expedited hearing on the dis:rl problem, or proposals for other possible actions so that at least a low power decision might be possible while awaiting resolu. tion of the emergency planning issue.-
I have asked the OGC to-provide a paper on this' In preparing this paper, the.OGC should subject soon.
work with other offices within NRC as necessary.
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.a) o Tcr Limerich, have the staff determine uhether the 1 censee w;11 seek a low power authorication, and have (a ain working with c hers as necessary)
OGC determine whether there are any other steps that might r
be taken to expedite the hearing.
For Waterford and Comanche Peak, the EDO informed us thh: he has placed one senior executive in charge of identifying the problems and laying out solutions and each schedules for.getting to a licensing decision at plant.
In addition, I would like the EDO to determine how what we are doing relates to the Board.
I also want to ensure that we are taking action with the licensee to either by consultation or enforcement, as
- correct, appropriate, any problems having merit that come to our attention.
For Diablo Canyon, I suggest that we give careful consideration to the staff's proposal yesterday morning to proceed without going deeply into the other allegations unless a review shows. serious problems not already dealt with.
For Syron, we probably need to wait to see what,the e'
Appeal Board says.
However, if a hearing is reopaned, (again working with others as necessary),
OGC should p'repare options for Commission consideration to
=
expedite it.
We have a review by the Commission'of the Midland plant
/ now scheduled for April 2, 1984, I suggest that the review include options prepared by the staff for subsequent agency action.
For Palo Verde,'and Grand, Gulf, the staff should keep the Commission. informed of actions planned or needed.
In,
(..
staff review of the diesel generators should any event, be completed on an expedited basis.
For the general problem of last minute allegations that a number of plants, I recommend that the Commi-ssion affect consider developing.a policy for han'dling last minute allegation =.
Such a policy.might1 include a deadline after which the threshold for allowing allegations to hold up a licensing action is very high.
For example, that threshold new'information,,,
might be something like the following:
supported by signed affidavits, and presented.in a_
se
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l disciplined way through establ shed channels.
By copy, I would like OGC to e>:plore this and other pessible approaches in a paper fer Ccmmission review and decision.
By copy, I would also like the EDO to respond to the specific matters raised above and provide a paper to the Con: mission outlining.he steps for 6ealing with potential delays.
This paper would be in preparation for a Commission meeting on this general subject at the earliest possible time.
In keec. ine with nw sbe. cession for a Commission meetinE in the near future, I propose that papers be prepared within the next couple of weeks (at least by April 5) so that the Cem ission could meet about mid-April.
SECY, please track the above action items.
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SECY OGC-OPE OIA EDO E o 6
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ATTACHMENT 2
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3/26/84
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY'S PRELIMINARY VIEWS ON SCHEDULING REGARDING LILCO'S NEW MOTION I.
Background
At a conference of counsel on February 22, 1984, this Board admitted-the first three Suffolk County supplemental emergency
-diesel generator ("EDG") contentions.
In rejecting LILCO's re-r' quest for a low power license after only a limited number of EDG
' components are litigated, this Board stated:
[W]e don't have any confidence that any of these' diesels will operate at any.
power unless we have litigated Conten-tions 1, 2 and 3 on the merits.
Tr. 21,631 (emphasis added). -However, this Board did not-preclude LILCO from-later filing a proposal to obtain a' low power license s
.21, 6 31-3 2 ~.
for Shoreham without relying upon the EDGs.
See'Tr.
Late on March 20, 1984,-counsel for the County received LILCO's Supplemental Mo, tion forLLow Power-Operating License.(the
" Motion").
The Motion is noti" supplemental" at all; rather, it is
E, an entirely new motion for a low power license that seeks to cir-cumvent litigation of the adequacy of the EDGs.
Thus, the new Motion is apparently a proposal to avoid the impact of the Board's above-quoted comments.
On March 22, Judge Brenner's secretary, Ms. Lane, telephoned the County's counsel, explained that Judge Brenner was in out-of-town. hearings, and asked whether counsel could join in a confer-ence call with her and the other parties on Thursday or Friday to discuss when they would be in a position to respond to LILCO's Motion.
Receipt of the parties' preliminary views by Monday,.
March 26, would facilitate issuance on Monday of any scheduling orders that might be appropriate.
Because the County's counsel.and experts on'EDG matters at the time were-in Oakland, California, for document discovery at TDI, and because the County's counsel and' experts had insufficient' time to review the Motion,' counsel told Ms. Lane that a-conference call would be premature.
Counsel. offered to give preliminary views to.the Board in writing early 'on Monday, and Ms. Lane indi-cated that this would meet the Board's needs.
- II.. The~ County's Preliminary Views A.
- The County believes that the-normal ten-day. period for a response to-LILCO's Motion (10 C.F.R.
$ 2.730(c))'is inadequate-in this instance. 'The Motion is a voluminous,.new proposal for low power operation of Shcreham,-. based upon complex. technical factual-information. and novel ~ legal arguments-never before presented to the County or this Board.. On its' face, LILCO's-Motion is'the type O
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of proposal which this Board envisioned to require an entirely separate collateral proceeding.
For the following reasons, additional time will be require'd for the County to analyze and respond to the Motion.
1.
LILCO's proposal raises a host of new substantive factual issues,1/ including:
a.
The nature and reliability of LILCO's interties to the New York Power Pool and New England Power Grid; b.
The nature and reliability of the various gas turbines mentioned by LILCO (e.g.,
those at Holtsville, at Shoreham, and at other locations);
c.
The nature and reliability of LILCO's transmission
. lines; d.
The nature and reliability of the four mobile diesels; e.
The possibility of a seismic event rendering unre-
- r liable all of the power sources relied upon by LILCO in the Motion; f.
The risks presented by low power operation and the amount of onsite power which must.be reliably available.
in view of those risks; g.
Whether there are any substantial benefits in terms of training _or other relevant factors which would justi-1/
The list of new substantive factual-issues herein is pre-
!iminary and merely illustrative.
Until the County is able to retain appropriate experts to review the Motion, a complete list of issues cannot be compiled.
ma
_4_
fy the sharp departure from NRC practice that LILCO proposes.
Since some of the new issues are outside the expertise of the County's current EDG consultants, the County must retain appro-priate experts in order to make meaningful responses.
Analysis of these new substantive issues will thus take significant additional time.
2.
LILCO's Motion, while lengthy, lacks many essential details.
Examples of information which the County must receive before' filing meaningful answers to the factual assertions in LILCO's proposal include:
a.
Specific data regarding the duration and sequence of operation at each power level sought in the Motion.
b.
Copies of approved Technical Specifications for Shoreham or a copy of the most recent draft.
c.
Procedures for electrical power system operation i
during the low power license period, including normal operation; test operations; emergency situations; in-stallation and maintenance procedures; and procedures for startup, synchronization and load sequencing of four mobile diesels.
d.
Equipment specifications for each normal and addi-tional source of AC power cited as available to support Shoreham without reliance on TDI diesels, including manufacturer; history of operation; specification; qualification data; transmission facilities' design en-velope, including seismic, hurricane, and other similar
data; installation reports; and quality assurance records for the above equipment.
e.
Underlying data which support the Affidavits attached to the Motion, including reports or risk analyses relied upon; detailed analyses underlying Sherwood Exhibit 4; bases for conclusions in Sherwood and Schiffmacher Affidavits; reliability analyses relied upon for structures, systems and components; and allow-able time to repair unavailable power sources.
f.
Description of security measures in place to assure availability and protection of offsite power sources (to the extent this involves safeguards information, data will need to be handled under procedures governing such information).
g.
Description of all instrumentation and control systems which will be used to initiate operation, s'
control, or protection of the additional power sources cited in the Motion, including _ instruments mounted on
~
the specific equipment; control room mounted equipment; and'other equipment for control, monitoring, and pro-tection of the additional _ power sources, h._
Tr'ansmission and distribution operation procedures which will be used instead of normal load dispatching and grid integrity protection procedures.
i.
List of all protection system inputs and specific set point indications _which will be modified or. relied upon'to assure staying within the,5% power limit.
m.
j.
Additional preoperation tests and demonstration tests to verify validity and reliability of inter-connected network of new equipment and existing equipment, including how the system would be tested during operation.
k.
Data supporting the man-hour assertions in the Notaro Affidavit and the length of time involved at each power level.
1.
Identification of system tests discussed in the Notaro Affidavit which can only be conducted during nuclear operation.
m.
Identify for the additional power sources the applicable regulatory guides and applicable standards and the degree of compliance with each.
For example, separation; single failure criteria; fire protection; periodic testing; independence of onsite systems;
- rinstallation; maintenance; bypassed and inoperable status indication.
n.
Detailed description of the tests to be performed during the proposed low power test program, including reference to-items in FSAR Section 14.
This information must be obtained from LILCO through informal-discovery.
This process and the' analysis of such-data by appro-priate experts will no doubt take significant time.
The willing-ness and ability of LILCO to respond expeditiously 1to these data recuirements will influence the length of time.necessary for such informal discovery.
L
, 3.
The legal issues raised by the LILCO Motion include:
a.
LILCO cites GDC 17 as the pertinent regulatory standard by which its Motion is to be judged.
- See, e.g.,
LILCO Motion at 6,
11, 23.
In fact, however, LILCO's compliance with many other regulatory standards also must be evaluated,' including GDC 2, 4,
5, 18, and 50, and 10 C.F.R. Part 50, Appendix B.
- See, e.g.,
Standard Review Plan, 5 8.3.1, which identifies all of the fore-going as pertinent to review of the adequacy of onsite AC power systems.
LILCO's Motion never even mentions these other regu-lations.
b.
Based on initial review of the LILCO Motion, it is clear that LILCO does not comply with certain regulatory requirements.
For example, neither the four mobile diesels nor the gas turbine are seismically or otherwise qualified for nuclear service.
- Thus, LILCO is proposing operation of the plant despite failure to comply with GDCs 4, 5,
17, 18 and 50 or.with Appendix B.
LILCO r
has not filed pursuant to.10 C.F.R. 2.758 for waiver of-these applicable regulations.
Absent a proper waiver petition, Section 2.758 prohibits licensing boards from considering arguments that a' licensee should not be required to comply with the Commission's regulations.
This Board has recognized this Commission require--
ment and, indeed, specifically stated on February 22 that any LILCO_ proposal seeking waiver or exemption would need to comply with regulatory requirements.
Tr. 21,632.
LILCO's Motion does not do so.
Adequate' time must be allotted for the County to further research and. address _these and other_possible legal issues.
4.
The County's counsel and experts in this proceeding are already devoting full time to the issues raised by the EDG con-tentions.
Thousands of documents were identified as relevant during their trip to TDI in Oakland last week, and when those documents are produced, the_r review will require all of April.
Depositions have not yet been scheduled.
Counsel are working under a very expedited schedule, given the extent and complexity of EDG matters.
Unless that schedule is relaxed significantly, the responses to the Motion will need to be delayed even further.
In summary, the Motion represents an extremely significant (in size and complexity) new " collateral litigation" (Tr. 21,515).
The County cannot at this early'date provide a detailed estimate of when it can respond to the merits of the LILCO proposal.
B.
There are a number of threshold issues which'the Board and parties should address.-
1.
The LILCO Motion does not meet the particular criteria.
I enunciated by the Board on February 22 for consideration of such a proposal.
See Tr. 21,631-33.
The County believes that,- for ex-ample, the LILCO proposal does not specify how it meets "the applicable requirements of;the regulations for' backup power or.
point out where At does not' strictly meet those requirements why
[LILCO) should be entitled to'some exemption or waiver under 2.758 Tr. 21,-632.
If the proposal ~does not meet the Board's criteria, it should?be summarily rejected and the parties should
~2/
iThe County has indicated to the other parties.that when the Board issues its order regarding its rulings at.the February 22.
conference,.the County;will seek additional' time to carry-out.the-many matters that must be accomplished.
This was'the County's intention even'before receipt of the' Motion.
not be. required to devote time and resources to answering it substantively.
2.
On February 22, this Beard clearly expressed its concern with LILCO's reliance on any power sources which are not seis-mically qualified.
Thus, Judge Brenner stated:
Personally I have great doubts that a waiver from the seismic criteria would suffice when the very reason for having emergency backup power is in some in-stances what might happen to your offsite power in the event of an earthquake.
I. don't want to preclude your attempting to show things.
.Tr.
21,633.
The Motion outlines alternate power sources, both onsite and offsite, including gas turbines, existing transmission lines,'and four mobile diesels.
None of these sources meet the seismic criteria.
LILCO suggests that this.is not crucial because
~
it wil1 have a procedure at some point so start plant shutdown ~if an acceleration of:0.0lg is recorded.
See Motion at 22..
Without reaching,the' merits of1such a procedure,3/ the threshold question is~whether,.as a matter of: law, LILCO's proposal to use the non-seismically qualified power sources is' acceptable when no Section 2.758. waiver is sought.-
-3.
This Board clearly; indicated on; February.22 that;any
. proposal 2which LILCO might file for a low power' license must not rely'upon'the TDI EDGs..
This. Board said:
3/-
The_ County _has serious doubts whether it-is reasonable to assume that there;will necessarily be sufficient time to shut down
.the plant after a 0.Olg. acceleration is recorded.and before a-
. larger / acceleration which causes significant damage.- Moreover,
.the LILCO suggestion is'not relevant to.the basic issue.of whether,Lafter a. seismic event, there--will be sufficient power'to
. cool down.the plant.
or (W]e don't have any confidence that any of these [TDI] diesels will operate at any power unless we have litigated Contentions 1, 2 and 3 on the mertis.
Tr. 21,631 (emphasis added).
Contrary to this caveat, LILCO's proposal does rely upon the TDI EDGs.
The Motion argues that the TDI diesels will be fully tested, although not fully litigated, during a portion of the low power operation phase, and thus would be "available for operation."
Motion at 3.
Moreover, LILCO implicitly relies.upon the TDI EDGs for the lengthy period after low power testing is completed, but before the replacement Colt diesels are operational.
LILCO has estimated that the Colt EPCs will not be installed and tested until August or September of 1985, and will not be connected until the first refueling outage.- Until.the first refueling outage, LILCO can only rely upon the TDI EDGs.-'Accordingly, LILCO's Motion seeks a quick and. easy low power license on the dubious asst ption that
- the TDI EDGs will necessarily be proven adequate, despite the voluminous evidence of their deficiencies, - this Board's and the '
Staf f 's lack of confidence in them, and LILCO's inm lack' of
'1 confidence in them as: evidenced by its decision to: replace them' with Colt diesels.in:any' event.
The County submits that:the'true.
presumption should be.that the cracked and defective TDI EDGs will' never be-qualified,1and that.accordinglytthe.LILCO Motion,-which?
. relies.upon those TDI diesels; contrary to;this Board's caveat,-
'should be summarily dismissed'...
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4.
' LILCO.has requested.that this Board : refer.the Motion '
1 directly to thezCommission pursuant to 10-C.F.R.
-2. 718. - See-S t
=
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11-Motion at 4.
The County preliminarily believes that such referral would be especially inappropriate in this case.
This Board has extensive familiarity with the matters at issue and has set stan-dards for an anticipated low power proposal by LILCO.
LILCO's attempt to circumvent this Boar'd ignores the plethora of factual and technical issues which the proposal raises, and which can only be. adequately addressed after investigation and testimony in a separate " collateral" proceeding.
Moreover, LILCO's arguments for referral or certification (see Motion at 24-26) contain numerous assertions of alleged facts which the County maintains are false and misleading.
An inquiry into these assertions should be re-quired before any determination is made to circumvent this Board and a factual. hearing on the merits.
5.
The LILCO Motion obviously is an entirely new and 1
radical change from LILCO's initial application for a low power license.
It is therefore a new application which, pursuant to 10
- r C.F.R.
5 2.101, must be reviewed for completeness and accept-ability by the Staff.
Time.for such a review of LILCO's proposal is essential, since technical' analyses.must be performed to assess
.the, merits and deficiencies of the LILCO proposal.
Mr. Bordenick, the Staff counsel, has informed the County that the Staff intends to. prepare a technical SER review of LILCO's proposal.
By assign-ing'it "high priority," the Staff expects to have its SER. complete
- by April l'7.
The County ~ understands that this. completion date is premised on the Staff promptly obtaining answers from LILCO to
- questions which are being formulated.
As noted previously, how-ever, the County;must retain additional experts and receive-
+
. +, -
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additional information from LILCO before reaching a conclusion on the technical merits.
This cannot,be accomplished by April 17.
In view of the foregoing, the County respectfully requests that the Board convene a conference of counsel in Bethesda to consider all of the procedural matters which affect both the ongoing EDG litigation and LILCO's Motion.
In advance of such a conference, the Board could announce its tentative agenda of the matters it desires to address, so that counsel will be prepared to provide focused responses.
Respectfully submitted, Martin Bradley Asnare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 Herbert H.
Brown Lasrence Coe Lanpher Alan Roy Dynner
/
Douglas J. Scheidt KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County March 26, 1984 t
e 9
UNITED STATES OF AMERICA
)
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322 0.L.
)
(Shoreham Nuclear Power Station,
)
Unit l ~)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY'S PRELIMINARY VIEWS ON SCHEDULING REGARDING LILCO'S NEW MOTION, dated March 26, 1984, have been served to the following this 26th day of March 1984 by U.S. mail, first class, except as otherwise indicated.
Lawrence J.
Brenner, Esq.*
Ralph Shapiro, Esq.
Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9 East 40th Street
~
U.S.
Nuclear Regulatory Commission New York, New York 10016 Washington, D.C.
20555 Dr. Ge'orge ' A. Ferguson*
Howard L.
Blau, Esq.
i Administrative ~ Judge 217 Newbridge Road Atomic Safety and Licensing Board Hicksville, New York 11801 T
School of Engineering I
Howard University
- .W. Taylor Reveley, III, Esq.
2300 6th Street, N.W.
Hunton.& Williams Washington, D.C.
20059 P.O.
Box 1535 707 East Main Street Dr. Peter A. Morris
- Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board
.Mr. Jay Dunkleberger U.S.
Nuclear Regulatory Commission New York State Energy Office Agency Building 2
. Washington, D.C.
20555
~
' Empire State Plaza
-Edward M.'Barrett, Esq.
Albany, New York 12223 General Counsel-Long Island Lighting Company James B.~Dougherty, Esq.
~
250 Old Country Road.
3045 Porter Street, N.W.
Mineola, New York-11501 Washington, D.C.
20008
Robert.E. Smith, Esq.
Stephen B.
Latham, Esq.
Guggenheimer & Untermyer Twomey, Latham & Shea 80 Pine Street P.O.
Box 398 New York, New York 10005 33 West Second Street Riverhead, New York 11901 Mr. Brian R. McCaffrey Long Island Lighting Company Mr. Marc W.
Goldsmith Shoreham Nuclear Power Station Energy Research Group, Inc.
P.O.
Box 618 400-1 Totten Pond Road North Country Road Waltham, Massachusetts 02154 Wading River, New York 11792 Joel Blau, Esq.
MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A.
Rockefeller Shite K Building San Jose, California 95125 Empire State Plaza-Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq.
H.
Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Fabian Palomino, Esq.##
Special Counsel.to the Atomic Safety and Licensing Board Governor Panel Executive Chamber U.S.
Nuclear Regulatory Commission Room 229 Washington,,D.C.
20555 State Capitol Albany,~New York 12224 Docketing and Service Section-Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal: Board 1717 H Street, N.W.
U.S.
Nuclear Regulatory Washington, D.C.-
20555-Commission-
- Washington, - D.C.
20555-Richard J.-Goddard, Esq.*
Ralph Caruso Jonathan /D. Feinberg,.Esq.
U.S.
Nuclear Regulatory Commission Staff Counsel Washington, D.C.
20555 New York State Public-Service Commission
'3 Rockefeller Plaza Fb.-Stuart Diamond Environment / Energy Writer
' Albany, New York, 12223 NEWSDAY
- Long Island,.New York 11747 9
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..- Stewart M.
Glass, Esq.
Regional Counsel Federal Emergency Management Agency 26 Federal Plaza New' York, New York 10278 i
a x,
Douglas J. Scheidt.
KIRKPATRICK, LOCKHART, HILL, "HRISTOPHER & PHILLIPS 1900 M Street,
.N.W.,
Suite 800 i
Washington, D.C.
20036 a
DATE:
March 26, 1984 l
l By' Hand Delivery
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EEC'f!'JE Cnt,".EER IEW YCCK CITY ATTACHMENT 3 t
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s
Bef6re the Atomic Safety and Licensino Board
_________________________________)
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
)
(SEoreham Nuclear Power Station, )
,. Unit 1)
)
_________________________________)
(
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PRELIMINARY VIEWS OF GOVERNOR CUOMO, REPRESENTING THE STATE OF NEW YORK, s
REGARDING LILCO'S SO CALLED " SUPPLEMENTAL MOTION FOR A LOW POWER OPERATING LICENSE 4
"1.
RESPONSE'TO LILCO'S INTRODUCTION i
The State of New York takes seriously its participation in this proceeding.
For this reason it is
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-e constrained, "in the interests of accuracy, to express -it's g
y.
P3 views'thereonJto the extent of taking issue with the reasons 5
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set f orth in.LILCO's' introduction as supporting this motion b
and for urging that only the Nuclear Regulatory Commission.
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itself can decicke it.
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DICUTh'E CHAMEEP. fG! YCRK CITY P.03 i
t In support of this new motion for a low power license and to refer it promptly to the Commission for decision LILCO assigns the following reasons:
"The Shoreham Nuclear Power Station represents both a huge commitment of economic resources and Long i
Island's only power plant not dependent on foreign oil.
Thus, there are compelling recions for the station's early operation.
Instead of being free to begin necessary and beneficial low power testing and training, however, Shoreham faces six to nine months of delay rooted in litigation concerning diesel generators.
This delay is unnecessary to assure the public ' health and safety for the activities authorized by a low power license."
/
"As a practical matter, LILCO believes that whether-Shoreham is entitled to such a license is a question that.only-the Nuclear Reg ulato ry _. Commiss ion itself can decide.
ihe intensely political environment that now t
envelops-Shoreham makes virtually certain that the NRC's highest tribunal must act before the plant will be allowed to conduct'any operations, even loading fuel.".
These reasons are not accurate or valid' predicates for either request.
The' fact that the plant is'not-dependent k
/
EXECUTIVE CH4'2E3 NEW YC#J: CITY P.04 o
upon foreign oil is irrelevant to the grant of a low power license.
No savings on foreign oil will take place unless and un_til the plant goes into full power commercial operation.
That could not occur for several years, if ever.
Both Suf f olk County and New York State, neither of which is participating in the LILCO offsite emergency evacuation plan and both of whom are opposing the licensing of Shoreham plant, have filed suits in New York State Courts to declare that the implementation of the offsite emergency evacuation plan by LILCO employees would be illegal because it requires an unlawful usurpation of powers vested solely in State and local officials.
Those suits will not be definitely determined for several years.
- Indeed, though LILCO insistently urges expeditious determinations of all contested issdes in NRC proceedings it promptly obtained an adjournment one and one-h'lf the time allowed to add {ltional of an a
interpose its' answers to the complaints in those State suits, The commitment of economic resources to the Shoreham Nuclear Power Station is not a compelling reason for that station's early operation The electricity it will-generate will not be needed for at least a decade or more (Marberger Commission Report,- p. 37. ).
Rather than being N
beneficial that electricity would wreak economic havoc at this time.*
~
- It would be the most costly electricity produced.
If that cost
~ was added to the current LILCO ratepayers. rate, which is reputed to be the highest in the natiion, ;it would ' drive businesses out of
' state, lead to great. unemployment and place un undue burden upon y
the households it did not impoverish.
t
EXECUTIVE CH 01EER NEW YC :K CITY P.25 Insof ar as the motion seeks a low power license for the purported purposes of training, it is unfounded.
The law and the regulations do not contemplate such a license.
They authorize licenses only for low power or full power operation, not for training.
The open ended nature of the subject motion -- that is, without limit as to time -- makes it clear that LILCO would obtain a usual low power license and not one limited for purposes of training.
As it has previously informed this Board, it would use the same backup generating system until the first fuel outage after full power operation.
The issuance of the low power license sought would permit that to happen.
Under those circumstances, the use of the Rube Goldberg lashup of unqualified generators and other means proposed by LILCO for emer,gency backup power would not provide reasonable assurance that health and safety of the public would be protected.
To issue a low power license for the training purposes proposed would be improper.
The purpose of training
~
is to educate personnel in the use of equipment they will be using in full power operation.-
Since LILCO personnel will be using Colt diesels for backup in full power.- operation training on the hodge podge of -generators and' other equipment proposed would not accomplish that objective.
E.ICUTIVE C-l*15ER T{W YO:K CITY P. 0-1 Furthermore, in view of the lack of qualified LILCO personnel to operate the Shoreham plant, it is egregious to grant a low power license for testing purposes.
The bald, conclusory assertion that the " intensely political environment that now envelops Shoreham" does not provide a basis referring the subject motion to the Commission for decision, as requested by LILCO.
There is no
" political environment" enveloping Shoreham, intense or otherwise.
The only change that has occurred in this proceeding is that the State of New York has entered these proceedings as an interested State and has refused.to participate in the of f site emergency evacuation plan, has-opposed the licensing of the Shoreham Nuclear Power Station on all levels and has filed e suit in State court, as aforesaid.
In taking these actions, the State of-New York is pursuing its full legal rights and fulfilling its responsibility protecting the health, welfare and safety of its inhabitants and.in seeingtthat its laws are'not unlawfully-ursurped by'LILCO.
-Thel pursuit-remedies-is a solemn: sovereign right and responsibility under the circumstances.- To ' imply.that it ~is political 1is, to_say the least, unseeming..
The '~ reason urged fo r ref e rring the ' motion to. the -
-Commission'is. f actually inaccurate and legally' inadequate.--
Accordingly, this Board should reject that request.
i N
.j
II.
THE MOTION SHOULD BE SUMMARILY REJECTED Applicants and licensees must comply with the Commission's regulations (NUREG-0386, NRC Practice. and Procedure Digest 15.1) or seek a waiver theref rom (10 C.F.R.
s 2.758).
LILCO states that its motion complies with GDC 17.
However, LILCO's motion papers fail to assert that i t complies with many other pertinent regulations including GDC.
2, 4,
5, 18, and 10 C.F.R. Part 50, Appendix B (See'e.
e.
Standard Review Plan s 8. 3.1, which identifies all the foregoing as: pertinent to the review of onsite AC power sys tems).
As neither the four mobile diesels nor the gas turbines proposed by LILCO are seismically or otherwise qualified for nuclear service, LILCO has f ailed to comply with GDC's 4, 5,17,18 and 10 C.F.R. 50, Appendix B.
The LILCO motion fails to comply with the r
aforesaid pertinent regulations and does not seek a waiver therefrom.
Accordingly, it is facialy insuficient to be entertained by this Board.
Therefore,.neither this Board nor~
the parties 'should be compelled - to devote time..or resources
~
to responding to it on the merits and it should be summarily rejected.
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E);:ECUTIVECHAMEDiNEWYORKCITY P.21 III.
IF THE MOTION IS NOT REJECTED SUMMARILY, THE BOARD SHOULD HOLD A CONFERENCE TO CONSIDER ALL PROCEDURAL MATTERS I
~
The State of New York fully agrees with and adopts Suffolk County's position that if the motion is not summarily rejected by this Board, the normal ten-day period for a l
response is inadequate and that because of the lack of detailed information in the motion, the legal issues raised, the time presently involved in the issues raised by the EDG contentions, the number of threshhold issues to be addressed t
and time required for Staff review, this Board should1 convene a conference to consider all-of the procedural matters involved and in advance thereof should announce a tentative agenda of matters to be addressed.
The State wiw11 I
i not belabor the-Board by setting forth detailed reasons therefor, but ref ers the Board to Suf folk County's response dated March 26, 1984.
Jespectfully sAmitted,.
J. x ~'~ N. / h. w w n
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FABIAN G. PALOMINO Special Counsel to the Governor of New York State Executive Chamber - Room 229 Capitol Building Albany, New York 12224 Attorney for MARIO M. CUOMO Governor of the State of New York March.28, 1984 s
D
EXECUTD/E CH r5ER TEW YORK C TY P.03 Robert E. Smith, Esq.
James B. Dougherty, Esq.
j Guggenheimer & Untermyer 3045 Porter Street, N. W.
80 Pine Street Washington, D. C. 20008 New York, New York 10005 Mr. Brian R. McCaffrey Stephen B. Latham, Esq.
i
'Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station P. O. Box 398 P. O. Box 618 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Joel Blau, Esq.
Mr. Marc W. Goldsmith Now York Public Service Commission Energy Research_ Group, Inc.
The Governor' Nelson A. Rockefeller 400-1 Totten Pond Road Building Waltham, Massachusetts 02154 Empire State Plaza Albany, New York 12223 Martin Bradley Ashare, Esq.
WHB Technical Associates Suffolk County Attorney 1723 Hamilton Avenue H. Lee Dennison Building Suite K i
Veterans Memorial Highway-San Jose, California 95125 Happauge, New York 11788 Atomic Safety and Licensing Board Panel Hon. Peter F. Cohalan U. S. Nuclear Regulatory Commission.
Suffolk County Executive Washington, D.
C. 20555 H. Lee Dennison Building Veterans Memorial Highway Happauge, New York 11788 Docketing'and Service Section Douglas J. Scheidt, Esq.
Office of the Secretary Kirkpatrick, Lockhart, Hill U. S. Nuclear Regulatory Commission Christopher & Phillips
-1717 H. Street, N. W.
1900 M Street, N.W.
Washington,-D. C. 20555 Washington, D. C. 28836 Richard J. Goddard, Esq.44 Atomic Safety and Licensing Ralph Caruso Appeal Board U.
S. Nuclear' Regulatory Commission U.'S. Nuclear Regulatory Waohington, D. C. 20555-Commission Washington, D. C. 29555 Mr. Stuart Diamond
' Jonathan D. Feinberg, Esq.
Environment / Energy Writer Staff Counsel NEWSDAY New York State.Public
. - ~
-n.
EXECUTIVE CHWdiER NEW YCRK CITY P.02 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board
_______________________________)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322 0.L.
)
(Shoreham Nuclear Power Station)
Unit 1)
)
_______________________________)
CERTIFICATE OF SERVICE I hereby certify that copies of PRELIMINARY VIEWS OF GOVERNOR CUOMO REPRESENTING THE STATE OF NEW YORK, REGARDING LILCO'S SO CALLED " SUPPLEMENTAL MOTION FOR A LOW POWER OPERATING LICENSE, dated. March 28, 1984, have been served to the following this 28th day of March 1984 by U.
S.
- Mail, first class, except as otherwise indicated.
Lawrence J. Brenner,-Esq.ft Ralph Shapiro, Esq.
Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9_ East 49th Street U. S. Nuclear Regulatory Commission New York, New York 19816 Washington, D. C. 22555 Dr.GeorheA. Ferguson if Howard L. Blau, Esq.
i Administrative Judge 217 Newbridge Road Atomic Safety and Licensing-Board Hicksville, New York 11891 U. S. Nuclear Regulatory Commission Washington, D. l:. 20555 l
,.Dr.
Peter A. Morris ##
- W. Taylor Reveley, III, Esq.
i Administrative Judge Hunton & Williams
" Atomic Safety and Licensing Board P. O. Box 1535 U. S.-Nuclear _ Regulatory Commission 707 East Main Street Washington, D. C. 20555 Richmond, Virginia 23212 Edward M. Barrett, Esq.
Mr. Jay Dunkelberger L
Ganeral Counsel New York State Energy Office Long Island Lighting Company Agency Building 2
i 1
._.. _. - - ~, _. _ _ __
Stewart M. Glass, Esq.
Rsgional Counsel Faderal Emergency Management Agency 26 Federal Plaza Ntw York, New York 10278 Q&s LLb'M w e-JJ FABIAN G. PALOMINO Special Counsel to the Governor of New York State Executive Chamber - Room 229 Capitol Building Albany, New York 12224 attorney ror MARIO M. CUOMO Governor of the State of New York
- By Telecopier DATE:
March 28, 1984 e'
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ATTACHtiENT 4 e
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NUCLEAR REGULATORY COMMISSION 3
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1 9
1 A ?'SETING ON TDI DIESEL GENERATORS I
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11 j
Phillips Building 12 l
7920 Norfolk Avenue 13 1
Room P-llS Bethesda, Maryland 14 Thursday, March 29, 1984 it 16 l.
17 The meeting on TDI Diesel Generators'was.
18' convened, pursuant to notice, at 8:30 a.m.,
Ralph Caruso-1 19 pres cing.
20
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W. MUSELER W.
SCHIFFMACHER 4
W.
GUNTHER B. MC CAFFREY 5
G.
DAWE G.
SHERWOOD 6
G. ECKERT i
A.
RAO-i I
NRC Staff:
8 R. CARUSO 9
j J.
KNOX-W.
HODGES 10 j
G. TUOP.AS B.
SHERON 11 J. KUDRICK D.
TOMLINSON 12 g, 3Agg723 i
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16 17 18 19 M
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en-ines are nor operable.
Your single failure, as you're l
2
-posing it, is a 20 megawart gas turbine, and you're posing 3
another one on top of that one.
4 MR. DAWE:
You're putting in several, Brian, 5
because you're putting in a fault someplace and then giving t-f no credit for any of the bus protection that exists all the j
6 I
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el
- back tc the mobile diesel.
wa-I 8
f 51R. MUSELER: I think the answer is we believe 8
it's okay the way it is, and if'you transfer back that would 10 j.
be what you would want to have.
I 11 MR. CARUSO:
Let's leave that right now.
l 12 l
MR. MUSELER:
If that's a significant concern, 1
s I
13 we'd appreciate'your' letting us know that subsequent to i
i 14 the meeting so that we can take it into account when we 15 write all these procedures.
r 16 MR. CARUSO:
How about if I turn it over now 17 to Brian Sheron.
18 MR. SHERON:
Before we leave power systems, one 18 '
question that came up which I guess I need to hear you 20 address is, tell'us the way you believe you-either still 21 comply with GDC-1, 2, 4 and 17 -- at least.those are the 22 ones I looked at and thought there was some question.
23 MR. MUSELER:
Generally, the.first thing to 4.
i 24 l
remer.ber is that the supplemental sources of AC power to the-j 25 plant are part of the off-site. power. system.
And I think we
4-1 sy,12 j
42 i
i 1
say that anf we may have somewhat caused a little bit of i
{ ambiguity in one statement we made in one of the affidavits.
2 3
Those sources are off-site power, we look at them 4
I as enhancements to the off-site power system.
In one place 5
in the affidavit we say that they are off-site power sources, 6
i but thar it's significant to remember that they are located on stte.
e i
8 MR. SEERON:
So you 're saying that your portable 9
diesels and your gas turbines and the like that are on site i
10 are still considered to be part of the off-site sources?
11 MR. MUSELER:
That's correct.
And therefore, 12 from the standpoint of those sources as equipment, they 13 have the same rule and requirements as the of f-site system 14 itself, which means that those GDC's don't apply, although 15 GDC-17 does, r
16 And our position on GDC-17 is that the TDI 17 diesels for Phases 3 and 4 will be available, that there is 18 a litigation that-has to conclude that has some undefined-18 reduced reliability associated with it, and that GDC-17 is 20 satisfied by considering the balance of the on-site sources 21 as they exist with the litigation still be open, along with the enhanced off-site sources.
23 So that the balance of the normal reliable 24 off-site system plus the supplemental off-site sources which 2,
happen to be located on site, balanced with the TDI diesels I
[ ',,v l f 43 4
i-1 in - place operated under tech specs, meets GDC-17 um.e-2
, ~,-g MR. HODGES:
I don't understand what you just 9
'said.
If I'm wrong, just tell me but it's my understanding 3
1 that th'e ruling of the Board says assume TDIs don't exist, 4
I 5
so no credit basically for the TDIs as to what your on-site 6
power source for the loss of off-site power.
7 MR. MUSELER:
No.
Our view of what the Board said, I
l 6
and also of what has been done on previous dockets -- and i
i 9
i
.one er two of them I believe have been pointed out.in the 10 brief that was filed'-- our view of what the Board said is 11 that we had to provide reasonab'le assurance that. reliability 12 of the on-site power sources, the TDIs, was-sufficient to 13 allow operation up to 5 percent.
And we'believe that the 14 showing we've made, given the fact that the TDIs will have If finished the test program and will have gone 'hrough the t
3 16 DRQR coupled with the enhancements of the off-site power 17 l
source, provides that reasonable assurance.
We believe I
18 that is consistent with the Board.
18 The Board recuires us to. demonstrate that to the 20 extent that on-site power needs to provide that reasonable 21 assurance for 5 percent, we think that the balancing. argument 22 that we have made does that.
23 MR. MC CAFFREY:
In addition to that, the, company 24 recogni::ed what Brian was saying here, on pages 6 and 7'of 25 Mr. Museler's affidavit.. We have effected the design, tech u
sy'4 E
44 I
0 b soec evoe testing, surveillance testing, to give you the I
i o
I assurance of availability and reliability of the off-site 3
So we have applied rigorous reliability g enhancements.
4 i; assurance testing to achieve that goal, to give us the balance that we'think we need.
6 MR. KNOX:
If I alve vou no crecit for the TDI
{
!.! diesel generators, do you meet GDC-17?
- i 8
i MR. M SELER:
The answer is we believe we do.
Y~
9
!l Especially we meet it for Phases 1 and 2, and we believe we 10 also meet it for Phases 3 and 4.
But I think we're getting 11 inte a legal question here,-and --
12 MR. CARUSO:
I think the question was really 13 whether you thought you met the GDC.or not, and if you 14 I
'l think you do, then that's the answer.
15.
MR. MUSELER:
Yes, we do.
16 MR. SEERON:
As I understand it, in order for you 17 to say that you meed the GDC, at least through Phases 3 and 18 4 you must take some credit for the TDI diesels that are-19 on site there.
.20 MR. KNOX:
Is that right?
21 4
MR. SHERON:
For Phases 1 and 2 I think you said 22 l
you don't need diesels because there is no decay heat, l.
i 2a il l
there's no fission product therefore, you can live without 1
24 diesels.
25 MR. MUSELER:
We can live without any'AC power l
syf5 45 t
I fr:r anywhere for Phases 1 and 2 I
2 l
MR. SEEROS:
Right.
So for Phases 1 and 2 you l
3 could claim that you implicitly meet the criteria because you don't need the diesels.
4 For for 3 and 4 --
5 MR. MUSELER:
I think we've shown that if the i
6 i
diesels are unavailable, we think we've shown that we can i
I s: 11 supply AC power to the plant.
8 MR. SEIRON:
I understand.
But if you read the
- fGDC, 9
it talks about seismic design and protect against f
enviror. mental missiles and the like, quality records and 10 11 the whole bit.
12 Now obviously, the portable diesels and the gas 13 turbine that you have on site don't meet all that good stu'ff, 14 but the TDIs theoretically do.
l 15 MR. MUSELER-That's correct.
- ^
r 16 MR. SHERON:
Therefore, in order to meet the letter of the GDC, you must-say that-the TDI diesels-that 18 provide compliance with the regulations --
19 MR. MUSELER:
We're saying that GDC-171 covers the j
on-site and off-site power sources, and our. position is that-21 i-the' balancing of the TDI engines, recognizing that there's 22 litigation still.to go but that they are there and we know l
~
I what their re' liability is since~ rebuilding -- that that,has 24 to be taken into consideration 1along with the enhancements' 25 to the off-site power system.
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MR. SHERON:
So in order to compty with the 2
regu la t i on s, some credit for the TDI diesels must be assumec.
m,-
3 MR. MUSELER: Say it again?
4 MR. SHERON:
In order to compty with the regula-5 tions, I said, just the appropriate GDC, which appeared at 6
first blush like 1, 2, 4 and 17 -- some credit for the 7
existence of TDI diesels on site and some croposed reliability 8
must be assumed for those diesels.
You can't assume a zero 9
reliability for the diesels and stilL say, I meet the regu-10 Lations.
11 MR. MUSELER: 'You can't assume that they are not U
there because the regulations say that you have to have in 13 on-site power source meeting those requirements.
However, if 14 ene were to describe an extremely Low reliability for the'TDI 15
- diesets, i.e.,
they do.not work, we ~ have demonstrated that.
i 16 we can stilL get AC power back.
17 MR. SHERON:
Okay, I understand.
I think there-was 18 a confusion.at'one time.
19 MR. MUSELER:
We do not assume that they are not-20 there.
We assume that they are there and they have toLbe 21 operational'in order.to meet'the tech specs.
M MR.-SHERON:
I -t hi nk that is a significant under-23 standing and I want to make sure that everyone here knows it..
24 MR. MCLCAFFREY: But.the way the Staff gets that 25 assurance is through the company's commitment to.h' ave TDI e.
1
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i diesels conform to the technical specification.
l 2
MR. SHERON: I understand.
1 3
l MR. MC CAFFREY:
Therefore, that is the basis upon l
I 4
! wnich you ascribe some Level of availability and reliability
}
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it, i
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MR. KNOX:
But if I give you a zero reliability 1
7 l on : nose TDI diesel generators, are you stilL saying that you 8
- meet GDC-17?
I 9
MR. MUSELER: Yes.
ID i
MR. KNOX:
How?
11 MR. MUSELER:
Because we can stilL get AC power i
U back to the plant.
13 MR. HODGES:
GDC-17 says either with on-sit e sources 14 or with off-site sources.
You have got to demonstrate wit h 15 both, not just that eventually one of t hem wilL come in.
16 MR. MUSELER:
Again, I think we are getting into 17 the Legal question, but the idea of balancing the reliability i
18 of both to crovide a meeting of the regulations --
19 MR. H0DGES:
You are putting us between a rock and 20
.a hard spot.
You want us to make the determination but you 21-don't want to discuss something that is in litigation until 22 it is through Litigation, and it is pertinent to what we have 23 got to use for_our evaluation.,
24 MR. MUSELER:
But there are phsyical facts that 25 are beyond the question of litigation, i.e.,
that those
"i r
48 i
l oyI 1
engines are there, that they run, that they have a very good i
2 stjYting record since they have been rebuilt, that all three
$5 3
'op them have gone through endurance runs without any shutdowns 4
l and that there are only two cualification tests left on two l
5 of the engines and they wilL have gone through their 6
j preoperationaL tests.
I 7
MR. HODGES:
How reliable are they?
li.
f MR. MUSELER:
We think those engines as they are 8
9 currentty configured are very reliable.
n i
10 j
MR. HODGES:
How reliable is "very"?
11 (Pause) i 12 MR. MUSELER:
Phases 1 and 2, yuu can assume any 1
i 13 reliability you want, it doesn't make any difference.
- Now, l for Phase 3 and 4 your cuestion was what is t he reliability 14 i
1 15 l of these engines.
Since rebuilding -- and this includes r'
16 taking those engines apart for inspections and cutting them 17 back together again and t hen starting them up after they had i
18 been totally disassembled -- they have started cumulative --
I i
19 they have been called on to start cumulatively 439 times.
20 They have started 434 times.
That is reliability of 98.8 or 9 21 percent.
We think they'are good, and they have atL gone f
22 through a seven-day endurance run.
23 MR. KNOX:
I want to ask one more ouestion.
24 I want to give you a zero reliability on these TDI diesel.
i l
25 l generators, and then I have a reliability of -- welL, if I
I
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49 4}cy4 1
took a no rma L reLiacility Let's say I could give you 2
what we would normaLLy expect the reliability of a IDI 3
generator to be, let's say if it was fully gauged as quali-i l
4 i fied, and we took that in connection with the off-site power i
5 system that you have, and now I take that r e li a bi li t y, when 6
you compare the on-site and off-site sources, and now if I
. take tne reliabil'ty of the zero for TDI diesels and then I 6
! take the reliability that you have for the existing grid system t ha t at Shorenam clus the gas turbine that you have 9
10
- acded, four nobile diesel generators, if you take that 11 l reliability, would inat reliability exceed the r'e l i a b i l i t y I
12 given a zero reliability for the TDI diesel generators with l
13
' the off-site system?
14 MR. MUSELER:
If you take as the base case a plant 15 that has TDI or Colt or whatever diesel generators that are 16 f ully.L i t i g a t ed and cuaLified, and the reliability of its 17 off-site power sources meeting the regulations, and then you 18 compare that to Shoreham with its normaLLy -
with its 19 regulatorily recuired off-site power sources, and assume a 20 zero for the TDI engines, and then add in the reliability of 21 the mobile diesets, which have an excellent reliability 22 record based on the numbers we have, and t he reliability of 23 the on-site 20 regawatt gas turbine, we beLieve you woutd 24 get we thd nk that the aggregate of that situation, Shore-25 ham with TDI but assuming zero reliability plus t he mobile
e i
~
50
.. v 5 1
- diesels plus the 20 megawatt gas turbine is a higher 2
reliability number than a plant with three nuclear diesels 3
and an off-site grid, and that doesn't even count the 4
reliability that you get out of having the more black start 5
units at Holtsville dedicated to supptying the site and 6
other black start unit s around the rest of the system that 7
- we have ;roceduraLLy ready to come in.
We think it is 1
6-lbetter. It is significantty better than the standard situa-i 9
- tion.
10 And again, we are talking about 5 percent power.
11 We are not talking about you know, you could acoly the U
same argument to full power, but we don't.want to do that.
l 13 MR. KNOX:
Okay.
Now, suppose.a tornado or 14 nurricane or design basis event out there on your grid, a 15/
seismic event. How about your reliability now?
For-those 16 events -- I'm talking.-- that's a design basis event.'I'm 17 not postulating a simultaneously --
18 MR. MUSELER:
We don't assume a LOCA.
The 19 situation for that plant is that it doesn't'have,a problem.
20 It's got many days to restore AC poser from wherever, on-site 21 sources, off-site sources or wherever.
There is just no-
.22 oroblem because there is so much-time available, in any event, 2
other than a loss of coolant accident.
- 24 MR..KN0X:
Okay.
So the reliability is just as 25 j good, right?
n o
l 51
)byG 1
ftR. MUSELER:
The reliability of getting power, i
h of having adecuate power available to maintain the plant in 2
3 safe conditions is -- I guess nothing i 's 100 percent these 4
days, but it is very close to t hat.
l 5
MR. fiC CAFFEEY:
Don't forcet, John, when you l
6 e taLx aggregate reliability, that you are comparing a plant
[ w i t t., let's say, good TDI ma c hi nes and att that, the plant 7
ll 8
, '. that woutd net be taking atL precautionary measures that we I
f 9
I nave octed fer in Museter's affidavit. So if you add into 10
. that the con:essions to put the plant in a stable protective lconditionadvance of any challenges to the reliability of'the 11 l
12 system, then you effectively improve your reliability even 1
13 I further.
14 MR. KNOX: Okay.
I have no more questions.
15 f1 R. H0DGES:
We had a question on ECCS analysis..
r l
16 In your affidavit you said that 55 minutes for the DBA LOCA 17 at 5 percent cower, that you did not violate the 50.46' 18 criteria.
In t hat, you did'not discuss, though, fuel failure.
i,.
19 Could.you provide some information discussing fuel faitures M
at 55 minutes.and then going back and considering the Loss of 21 off-site powe* and failure of the gas' turbine so t hat you.
4 I
ed nave to rely upon.the portable diesels as~a backus power 23 J source?
~
t
(
24 What wcuLd be the peak. cladding temperature in 26
- f u e L 'f a i l u r e s o f that_ type?
p
ATTACHMENT 5 0
4/3/84 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL l
)
l (Shoreham Nuclear-Power Station,
)
Unit 1)
)
)
l SUFFOLK COUNTY'S COMMENTS ON NOTICE OF ORAL ARGUMENTS j
On March 30, 1984, this Board issued a Notice of Oral Argu-4 ments, which stated that at the conference to be held on April 4, 1984, the Board will hear the views of'the parties as to a sche-dule for " expedited consideration and determination" of issues i
raised by LILCO's Supplemental Motion for Low Power Operating License and the responses of the other. parties.
Suffolk County questions the basis for the Board's apparent position that the LILCO Motion is entitled to'such' expedited treatment. 'LILCO has set forth no valid or legitimate reasons for:
expedited treatment.
To the extent that LILCO's arguments for referral or certification are regarded as arguments for expedited treatment by this Board, the County must have an opportunity to respond to those arguments.
See LILCO. Motion at 24-26.
InLthis the County su'mits that there is no basis for any expe-b
- regard, dited process.-
The electricity which would be produced by H
y
. Shoreham will not be needed for at least 10 years, as LILCO itself
- has admitted in filings with Governor Cuomo's Shoreham Commission.
See Attachment 1.
Further, there are numerous factual questions which must be investigated before LILCO's new motion is addressed on the merits.
The investigation of such questions, consistent with satisfying the paramount need to protect public safety, will necessarily involve several steps and take commensurate time, as described in the County's Preliminary Views on Scheduling LILCO's New Motion, dated March 26, 1984.
For example, the County's opportunity to conduct appropriate and necessary discovery in order to gain the facts.that will enable a meaningful response to LILCO's Motion
- cannot.be sacrificed.
The County -- and presumably the other parties as well --
desires a full and fair hearing on LILCO's Motion.
Whether there is just,ification for expediting the. Board's treatment of LILCO's Motion depends on whether there are any'special circumstances here..The County knows none, but respectfully submits that the Board direct-the parties to address this issue at the April 4 oral i'
l crgument..
1 a
4
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a
.s Finally, the County has no objection to setting a schedule for the prompt resolution of the threshold issues discussed in the County's Preliminary Views, at 8-12.
Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 4
e A-Herbert H.
Brown 7
,i Lawrence Coe Lanpher Alan Roy Dynner KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County April 3, 1984 i
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I ATTACHMENT 1 w
REPORT OF THE NEW YORK STATE FACT FINDING PANEL ON THE SHOREHAM NUCLEAR POWER FACILITY f
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v g kCEL.5 Honorable Mario M..Cuomo Governor Dr. John H. Marburger, Ill Chairman 4
Stony Brook, New York December 1983 e
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QUESTION 8-IS SHOREHAM NEEDED TO MEET THE REASONABLY FORESEEABLE NEEDS OF ELECTRICITY CONSUMERS?
(This response is based upon the Staf f Economics Report, Appendix 6(a).
Although the Staf f Report was discussed in regular meetings of the Panel, the specific form of this response was not.)
None of the projections done by LILCO, Suf folk County or the Commission s
staf f indicate a near term need for Shoreham to meet demand.
LILCO projects that two 400 MW coal units would be necessary, one in 1994 and another in 1996, if Shoreham is abandoned, using their load forecast of approximately 1.6 percent per year growth in peak demand.
ESRG, a consultant to Suffolk County, projects that the first replacement coal unit, presuming Shcreham is abandoned, will not be needed until 1998 using a forecasted peak load growth rate of about 0.8 per:ent per year.
l The staf f analysis, which incorporated a forecast of peak load growth rate of approximately 1.25 percent per year with Shoreham operating and 1.1 percent per year with Shoreham not operating,- also projects that the first replacement coal unit, if Shoreham is abandoned, will not be required until 1998.
It should be noted that the staff projections assume operation of Nine Mile Point 2 and development of alternative energy sources, such as solar, wind.
- refuse, cogeneration, and landfill
- gas, as well as resonably expected penetrations of conservation, both price-induced and regulation-induced.
It should also be noted that, without Shoreham, LILCO will be more heavily dependent on oil-fired capacity during the next 15 years.
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.Althotgh the evaluation of of f-site emergency preparedness plans is the responsibility of FEMA, tne Panel does wish to express reservations about i
LILCO's ability to implement a plan that achieves an adequate state of j
preparedness without the as sistar'c e of county government.
The State's responsibility for emergency preparedness requries that it pay close attention to the subsequent course of the licensing process to satisfy itself that n
- preperedness is' adequate according to its own standards should a license be awarded.
3 9.
The projections for Long Island's future electrical energy needs on which the Shoreham constructic' schedule was originally based were obviously
(
ove re s tima tes.
The Panel is pec;.mded that ample LILCO generating capacity currently exists to satisfy probable f emand for at least the next decade, and probably l lunger.
Such estimates are of course subject to the same uncertair. ties that cause the original projections to be so wrong.
But at this
~
time, it is dif ficult to see' how the demand for electricity could be to great
~
as to require a Shoreham-sized plant within a decade or more.
10.
Finally, if the plant should eventually receive a license to operate, the publ_.ic would be well served by an objective inspection program by an independent technical firm acceptable to federal, State and local governments, as well as the utility.
Public confidence in the quality of the plant.is very low, and further inspections will either reveal problems that should be addressed prior to operation orf confirm the assertions of previous inspections that found little cause for corcarn, i
V.
Views of Panel N bers
\\
k\\,f The following views were prepared by individuals or groups of Panel cembers N
C after the formal meetir,'gs and-r. ear'icgs weie completed.
None'of the following stytementsissueertedbyt every Panel.memoer, but some are suoported by more Qn(c one member, as indicat'ed.
In some cases,.aese statements contain phrases r
w swh as "the Panel believes" cr "the Commission feels that" or "tne Commission i
concludes that"... ' Such phrases should belintercreted as signifying the views
'only of those whose names are associated with that statement.
The Panel die a
not o;: era b,'
scch a way as to generate a perceotible common viewpoint on any specific usue, except possible for the carefully worded " General Views" state-1
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ments'irl[the'precedingsection.
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3 37
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UNITED STATES OF AMERICA NJCLEAR REGULATORY COMMISSION Before the Atomic Safety and' Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 5 0-}2 2 0.L.
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE 1 hereby certify that copies of SUFFOLK COUNTY'S COMMENT ON NOTICE OF ORAL ARGUMENTS, dated April 3, 1984, have been served to the following this 3rd day of April 1984 by. U.S. mail,. first class, by hand when indicated ~by an asterisx, and by telecopier when indicated by two asterisks.
Ralph Shapiro, Esq.
Marshall E. Miller, Chairman
- Cammer and Shapiro Atomic Safety and Licensing Board.
U.S. Nuclear Regulatory Commission 9 East 40th Street Washing, ton,.D.C. -
20555 New York, New York' 10016 Mr. Glenn O. Bright *
' Bernard M.
Bordenick, Esq.*
Administrative Judge David A. Repka, Esq.
Atomic Safety and Licensing-Board U.S.. Nuclear Regulatory Com.
U.S. Nuclear Regulatory Commission Washington, D.C.'
20555 Washington,LD.C.
20555 W.. Taylor Reveley, III, Esq.**
Hunton-a Williams i
Ms. Elizabeth B.~ Johnson
- P.O. Box:1535 Administrative Judge
_707 East Main Street
~ Atomic Safety;and Licensing Board Richmond,. Virginia
.23212' U.S. Nuclear Regulatory. Commission Washington,fD.C.
20555
'E
-Jay Dunkleberger.
_New--York State Energy Office fEdward M.lBarrett, Esq.
Agency Building 2 Empire State Plaza.
General Counsel:
(Albany, New' York' 12223 Long. Island Lighting Company 2 50: Old Country. Road
_Mineola,1 ew York 11501 James B.:Dougherty,'Esq..
N 3045 Porter Street, N.W.
[
,y Washington',
D.C.
20008
r-Stewart M. Glass, Esq.
Stephen B.
Latham, Esq.
Regional Counsel Twomey, Latham & Shea Federal Emergency Management P.O. Box 398 Agency 33 West Second Street New York, New York 10278 Riverhead, New York 11901 Mr. Brian R. McCaffrey Long, Island Lighting Company Mr. Marc W. Goldsmith Shoreham Nuclear Power Station Energy Research Group, Inc.
P'.O. Box 618 400-1 Totten Pond Road North Country Road Waltham, Massachusetts 02154
. Wading River, New York 11792 Joel Slau, Esq.
MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A.
Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza Albany,-New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin-Bradley Ashare, Esq.
H. Lee Dennison Building Sut, folk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Fabian Palomino, Esq.**
Special Counsel to the 4
M V
Atomic Safety and Licensing Board Governor
~
3 Panel Executive Chamber a
U.S. Nu Room.229 Washing, clear Regulatory Commission
- ton, D.C.
20555 State Capitol Albany, New York 12224 Docketing and Service Section,.
4 Office of the Secretary
. Atomic Safety and Licensing
~U.S.
Nuclear Regulatory Commission Appeal Board U.S. Nuclear Regulatory 1717 H Street, N.W.
Washington, D.C.
20555 Commission Washington, D.C.
20555 Jonathan D.
Feinberg, Esq.
iStaff-Counsel
,New York Statch Public f
Service Commission 3 Rockefeller Plaza
{-
- Albany, New Yorkl 12223 i / A s u n.se ?
- . :.x,,ftn
/
t Mr. Stuart Diamond VLawrence Coe Lanpher Environment / Energy Writer KIRKPATRICK, LOCKHART, HILL, NEWSDAY CHRISTOPHER & PHILLIPS Long Island,-New York 11747
'1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE:
' April 3, 1984 s.l' E#
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ATTACHtlENT 6 4/3/64 UNITED STATES OF AMERICA NUCLEAR REG *.;LATORY COMMISSION M*e the Ate-!e Safeev erd Efeensine Beard
..._____......______..__....___. )
In the Matter of
)
)
LONG :SLAND L:GHTING COMPANY
)
?ockee No. 50 322 0L
)
( S r.o r e ha t nuclear ?cwer S.ation,
)
Unit 1)
)
-___......._________....__)
MOTION SY GOVERNOR CUOMO TO DELETE PROVISION IN THIS 50ARD'S CRLER OF MARCH 30, 1964 MANDATING EX?IDITIOUS CONSIDERATION AND DETERM: NATION OF :SSUES FATSED IN LILCO'S SUPPLEMENTAL MOTION Wr.11e there may arguably be a basis in the Order of Judge Cetter for the appcir.tment of a r.ew Licensing Scard to decide the issues raised in LILCO's Supplemental Motion for a Low ?cwe r Lic er.s e (filed'Ha rch 20, 1984), there is no valid basf's for the provision in the Order of that new Board zandating an " expedited consideration and determination" of those issues.
The people of the Sovereign State of New York are I
entitled to constitutional due and orderly process in these proceedings as well as to the benefit of the Administrative i
Procedure Act which spells them out.
No exception is l
provided in either the Federal Cor.stitutional Requirements of due process or the Administrative Procedure Act for NRC f
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p ro c e e cir.g s.
The Order of Judge Cetter does net direct that there be an expedited consideration and determination of the j
1 issues rais ed by L LCO's Supple::: ental Motion.
Nor does it
- j provide any reason warranting such expeditious consideration and determination.
The State of New York may not be deprived of these substantial rights by sdministrative fiat or whim.
"c reason has been assigned for such a radical action in the March 30, 1964 Order of this Board.
Ir.d e e d, a s f ully forth ir. papers previously filed by the State of New York se:
in this Supplements; Proceeding, there is no valid reason assigned by LILCO which warrants expeditious consideration and determination of the issues raised by that Motion.
Furthermore, the Order of this Board effectively prevents an expeditious consideration and determinatien of the issues raised by LILCO's Supplemer.:a1 Motion.
Inasmuch as LILCO is relying upor. the TDI emergency diesel generators currently on e'
site and inasmuch as the said Order of this Board precludes.
it from deciding issues of the operability and reliability of the TDI emergency diesels, no decisior. can be made by this Board until the Brenner 30 erd determines the issues of operability.and reliability of these diesel generaters.
For all of the'above reasons, especially the denial of-due process entailed thereby, the State.of New York strenuously objects ~to the provision in the aforesaid-Order
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F.c2 mar. dating an expedited cor. sideration and determination of the issues raised ir. the Supplemental Motion for a low power operating license filed by LILCO and requests that the same be deleted therefrom.
The State of New York reasserts its request for the settir.g of a schedule for the prompt resolution of the threshhold issues raised in the papers previcusly filed by Suff 1k County in its Freliminary Views which was joined in and supported by the State cf New York.
Respectfully submitted, FABIAN G. FALCMINO Special Counsel to_the Governor of New York State Executive Chamber Room 229
/
Capitol Suilding Albar.y, New York 12224 Attorney for MARIO M. CUOMO Governor of the State of New York April 3, 1982 l
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.-, =_..--.- --
ATTACHMENT 7 b,.
c AND COUN$1L MoaRfS K. UDALL. AttZ CHAIRMAN ib'5.3.5,a"t.kan. EM7 eau.
COMMITTEE ON INTERIOR
"^"'"'c'"
- ='onesonaawon pam mannert, vra" Lff MC fLVAIN tr';"Ya**'I lr.r'ln"4 %
AND INSULAR AFFAIRS
- Nim COUNsi--
n'I U.S. HOUSE OF REPRESENTATNES 5 7UCA COU StL WASHINGTON, D.C. 20515 utan gicy
- g. va-ga s'*.T.;.!",co.
f":"%%e.
Apr.t1 12, 1984 y;=,q.g,o M E'."?& %.
II'.E"#f Idem ca
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- u i.c M, 2:::: r'.."'l,*,
u The Horiorable Nunzio J. Palladino i
Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555
Dear Mr. Chairman:
Thank you for your prompt response to my March 28, 1984 f
letter to you about perceived " licensing delays."
I continue to think that your March 20, 1984 memorandum to the other Commissioners on this subject and other subsequent actions that you have taken strongly imply that you have pre-judged aspects of the Shoreham licensing proceeding.
Regardless'of your initial intent, certain events have transpired which create-the appearance that your statements and views have been treated as a mandate by members of the NRC's Atomic Safety and Licensing Board (ASLB).
Your March 20, 1984 memorandum states that you convened a meeting with B.
Paul Cotter, Jr., Chief Administrative Judge of the ASLB and members of the NRC staff (a party to the proceeding) on March 16, 1984 to discuss potential licensing delays at Shoreham and other_ plants.
Apparently, as an outgrowth of that meeting, and your subsequent i'
memoranda, Judge Cotter' appointed a new board to consider on an expedited basis the Long Island: Lighting Company's (LILCO) l March 20, 1984 " Supplemental Motion.for [a] Low. Power.Operati'ng'-
l-License."
over the unanswered objections of Suffolk County and New-g the newly appointed licensing panel issued an order York State, on. April 6,1984 that states:-
"...the expedited schedule set forth below will not prejudice any party'to this proceeding."
In reaching such.a decision, I am concerned that the board did
'(a) specifically resolve or even-' respond - to the arguments not:
of intervenors that an. expedited schedule would prejudice their righttto a full and fair hearing;.and, (b) state why it apparently-9
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The Honorable Nunzio J.
Palladino April 12, 1984 Page Two believes an expedited hearing is necessary.
I respectfully request that the Commission formally ask the board to respond to these two issues.
It would appear that in the absence of any specifically stated rationale by the licensing board, that it has declined to respond to the arguments of intervenors and decided to oblige LILCO because of the utility's perceived financial problems.
l Apparently, the board is in agreement with the rationale stated by LILCO in the first two sentences of its Supplemental Motion:
Tne Shoreham Nuclear Power Station represents both a huge commitment of economic resources and Long Island's only power plant not dependent on foreign oil.
Thus, there are compelling reasons for the station's early operation.
.I am unaware of any statutes which provide the ASLB with the authority to expedite.a proceeding on this basis without hearing from and resolving the views of all parties.
Because of the appearance of impropriety in the board's actions, I believe the Commission should request the board to explain why it believes an expedited hearing is necessary.
L With respect to your involvement in this case, I understand l
that on April 4, 1984 you. circulated a' follow-up memorandum l
to the other Commissioners that included a proposed order-drafted by Judoe Cotter and a paper written by your own. staff 1that would I
have het forth an expedited schedule in which the Shoreham low l
power licensing proceeding would be completed in' thirty to sixty l
days.
('
L Your memorandum'and the draft order, apparently written prior to the April 4',
1984 licensing board hearing to decide
- the l merits of LILCO's request for an expedited proceeding, - was'.
circulated without obtaining:or representing.the views of'all-parties.
As the ultimate decision-maker in this proceeding, your actions create the appearance that you have pre-judged'the merits'of LILCO's request and did-so in an unorthodox and-l inappropriate fashion.
l-
-The present " licensing delay" at Shoreham is not attributchic L
to the'NRC licensing process.
'The delay is not'a licensing delay
.per se,-but rather, is directly' attributable to the.use of defective and unqualified equipment used to supply on-site power..Hence, Lactions taken to expedite review of this -issue could Dmpact upon L
thel consideration ~ of.the merits and substance of the proceeding' itself.
,._..m
~_
p The Honorable Nunzio J.
Palladino
~
April 12, 1984 Page Three i
In order that public confidence can be restored, if possible, to what has become an unseemly and confused process, t
I think that it is essential that you explain why you believe the Shoreham proceeding should be expedited as well as your reason for circulating the draft order prepared prior to hearing from and resolving the views of all parties.
In this context, I also think you should reconsider recusing yourself from voting on either the low power or full power license for Shoreham.
Add.'tionally, I would like to be provided with all documents and memoranda on this issue that have been written or circulated subsequent to your March 20, 1984 memorandum.
I would appreciate receiving these documents within five working days.
Further, please identify and provide a description'of all communications that you, the other Commissioners, OGC, EDO, or i
members of the NRC staff have had in 1984 that related to or concerned the matter of licensing Shoreham with employees or officials of LILCO, representatives of LILCO (including but not limited to members of the firm Hunton and Williams), organizations composed of or representing the nuclear industry, the Secretary of Energy or members of the Department of Energy staff,-the Director or Associate Director of the Federal Emergency Management Agency. (FEMA) or members of the FEMA staff, or other Executive Branch-offices or. members of:the White House staff.
To the extent l~
that any such_ communication was written, please provide all i
relevant documents.
l
/r Thank you for your prompt attention to this' matter.
j Sincerely, Edward J. Marke Chairman-Subcommittee on-Oversight" m
l and' Investigations l
h*
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(.-
s' 00LKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 14 NH 16 PS:09 Before the Atomic Safety and Licensing Board c.OFSECHLIM -
m CD hETING & SEPvir.r.
)
BRANCH In the Matter of
.)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station',
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the JOINT OBJECTIONS OF SUFFOLK COUNTY AND THE STATE OF NEW YORK TO MEMORANDUM AND ORDER SCHEDULING HEARING ON LILCO'S SUPPLEMENTAL MOTION FOR LOW POWER OPERATING LICENSE, dated April 16, 1984, have been served to the following this-16th day of April 1984 by U.S. mail, first class, by hand when indicated by one hsterisk, and by Federal Express'when indicated by two asterisks.
Judge Marshall E. Miller, Chairman
- Edward M.
Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting' Company U.S.
Nuclear Regulatory Commission 250 Old Country Road Washington, D.C.
20555 Mineola, New York 11501 Judge Glenn O.
Bright
- Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk' County Executive U.S.
Nuclear Regulatory Commission H. - I.ee Dennison Building Washington, D.C.
20555 Veterans Memorial Highway Hauppauge,.New York ~ 11788 Judge Elizabeth'B. Johnson **
Oak Ridge National Laboratory Fabian Palomino, Esq.
P.O.
Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830
. Governor Executive Chamber, Room 229 Eleanor L.
Frucci, Esq.*
State Capitol.
Atomic Safety and Licensing' Board
. Albany, New York 12224 U.S.. Nuclear-Regulatory Commission Washington, D.C.
20555'
- W.
Taylor 1Revele'y,:III, Esq.
Anthony F. Earley,- Jr., Esq.
Counsel-for NRC Staff
- Robert M. Rolfe, Esq.
Office of the' Executive Legal Hunton~&-Williams-Director 707 East Main Street-U.S.
Nuclear Regulatory Commission.
Richmond, Virginia.
23212 Washington, D.C..
20555 O
s
.a
d 4
- Mr. Martin Suubert James Dougherty, Esq.
c/o Cong. William Carney 3045 Porter Street, N.W.
1113 Longworth House Office Washington, D.C.
20008 Building Washington, D.C.
20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley Ashare, Esq.
175 East Old Country Road Suffolk County Attorney Hicksville, New York 11801 H.
Lee Dennison Building Veterans Memorial Highway Jay Dunkleberger, Esq.
Hauppauge, New York 11788 New York State Energy Office Agency Building 2 Docketing and Service Branch Empire State Plaza Office of the Secretary Albany, New York 12223 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Comm. Frederick M.
Bernthal*
U.S.
Nuclear Regulatory Comm.
Nunzio J.
Palladino, Chairman
- Room 1156 U.S.
Nuclear Regulatory Commission 1717 H Street, N.W.
Room 1114 Washington, D.C.
20555 1717 H Street, N.W.
Washington, D.C.
20555 Comm. Thomas M.
Roberts
- U.S.
Nuclear Regulatory Comm.
Commissioner Victor Gilinsky*
Room 1113 U.S.
Nuclear Regulatory Commission 1717 H Street, N.W.
Room 1103 Washington, D.C.
20555 1717 H Street, N.W.
Washington, D.. C.
20555 Commissioner James K. Asselstine*
U.S.
Nuclear Regulatory Commission Room 1136 1717 H Street, N.W.
Washington, D.C.
20555
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b Alan Roy Dynn.
/
KIRKPATRICK, OCKHART, HILL, CHRISTOPH R & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE:
April 16, 1984 i