ML20084G066
| ML20084G066 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/04/1984 |
| From: | Reveley W LONG ISLAND LIGHTING CO. |
| To: | |
| Shared Package | |
| ML20084G056 | List: |
| References | |
| OL-4, NUDOCS 8405070055 | |
| Download: ML20084G066 (61) | |
Text
F LILCO, Msy 4, 1984 f.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
/
In the Matter of
)
'4 @2 20 Docket [hhC050, $ '"
LONG ISLAND LIGHTING COMPANY
)
322-OL-4
( Low" PyW"#C4
)
er (Shoreham Nuclear Power Station, )
~
Unit 1)
)
LILCO'S COMMENTS IN RESPONSE TO THE COMMISSION'S ORDER OF APRIL 30TH I.
COURSE OF EVENTS A.
More than a month and a half have now elapsed since LILCO served by hand on the Commission itself, the Brenner Li-censing Board, Suffolk County and the State of New York a "Sup-plemental Motion for Low Power License."
That motion of March 20, 1984, expressly sought immediate Commission consideration of pertinent issues.
Thus, the motion stated:
As a practical matter, LILCO be-lieves that whether Shoreham is entitled to such a license is a question that only the Nuclear Regulatory Commission itself can decide.
The intensely political en-vironment that now envelops Shoreham makes virtually certain that the NRC's highest tribunal must act before the plant will be allowed to conduct any op-erations, even loading fuel.
Recognition of this reality prompts LILCO to request:
8405070055 840504 PM ADOCK 05000322 0
_ f o.
1.
That this Board promptly l
refer the present supplemen-l tal motion to the Commission for decision, pursuant to 10 CFR S 2.718; l
2.
That if the Board decides against immediate referral, it then consider and decide this supplemental motion in an expedited fashion and thereafter certify its deci-sion to the commission, pur-l I
suant to 10 CFR $ 2.730.
Id. at 3-4.
i Following the filing of LILCO's motion, there has en-sued the following 48-day spectacles Day 1:
March 20 LILCO serves its sup-plemental low power mo-tion by hand on the l
Commission, Brenner j
Board and Suffolk Coun-i ty (SC or County),
j asking that the Brenner i
Board promptly refer the motion to the Com-i mission or rule expedi--
~
tiously on it and cer-i tify the result to the
)
Commission.
Accompa-l nying the motion are affidavits setting out the technical bases for LILCO's request (the 2
i substance of LILCO's j
subsequent profiled testimony appears in 1
these affidavits).
I 1
l
s i
i i
Day 7:
March 26 SC1/ vigorously opposes i
referral of the motion to the Commission and objects to LILCO's low power request on nuraer-l ous grounds, including GDC 17.
The. County also outlinea the fac-i tual areas it. deems necucsary to invouti-gate, but it takes no steps to begin the in-vestigation by en'Jaging i
consultants or seeking discovery.
Day 9:
Maech 28 A federal Congressman opens political fire on j
Chairman Palladino, i
~
suggesting that he'has
" pre-judged the merits" of a low power license for Shoreham and de-manding, if such is the case, that the Chairman "immediately recuse" himself from the Shoreham proceeding.
Day 10r, Myrch 29 The NRC Staff meets with LILCO to question it about the technical aspects of.the March 20 motions the^ questions and answers are tran-ecribed. 'sc attends the meeting and re-ceives the fruits of what..in effect, are staff depositions of LILCO's experts (by letters dated April 3, 6 ar.d 11, LILCO 1/
The actions and viewh of New Ydrk's Governor are rarely noted in this chronology.
They generally-track.those of Suffolk County.
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provides the Staff and SC additional informa-tion requested by the NRC reviewers).
Day 11:
March 30 A new Licensing Board headed by Judge Miller is named to hear the March 20 motion, fol-J lowing " advice" by the Brenner Board "that two of its members are heavily committed to work on another.
proceeding.
" 49 Fed. Reg. 13612 (April j
5, 1984).
The Miller Board notifies all parties that oral _ argument on the March 20 motion and objections to it will 1
be heard on April 4.
Day 14:
April 3 SC objects to any oral argument that reaches j
the merits, on the ground that the County j
has not had time to prepare.
I Day 15:
April 4 Lengthy oral argument occurs before the Mill-er Board, focusing on GDC 17 and schedule
- matters, i
Day 17:
April 6 The Miller Board rules that GDC 17 does not preclude reaching the facts of LILCO's mo-tion, frames the issues for hearings, and pro-vides that discovery will end on April 16, written testimony be filed on April 20, and hearings occur on April i
b
~.
4 24-28 and 30, and May 1-5.
Day 22:
April 11 The suffolk County Ex-ecutive fires the sec-ond political salvo against Chairman Palladino.
In a letter not served on the other parties until five days after its delivery to the Commission, the SC Executive repeats ear-lier political allega-tions of bias on the Chairman's part and in-sists, as paraphrased in a later SC pleading, "that the present Li-censing Board with ju-risdiction over LILCO's low power license re-quest be promptly disestablished by the Commission and a fur-ther Commission order be issued to assure no further Licensing Board violations of due pro-cess of law."
'SC serves "boilerplate" discovery requests-_that could have been' pre-pared immediately upon receipt of LILCO's af-fidavits three weeks-earlier; SC makes fur-ther discovery efforts on April 12', 13 and 16, but eschews LILCO's in-vitation to review doc-
- uments around the clock from April 13 through April 16.
Day 23:
April 12 The Congressman renews his March 28 assault on-Chairman Palladino, w
r r
once again suggesting that he recuse himself from the shoreham pro-ceeding.
Day 27:
April 16 SC files papers with the Commission and with the Miller Board asking that the Board's April 6 order be overturned, repeating its arguments of March 26, April 3 and April 4.
Day 30:
April 19 LILCO and the NRC Staff oppose SC's request in papers filed with the Commission and Miller Board.
Day 31:
April 20 The Miller Board de-clines to vacate its April 6 order and re-fuses to certify the matter to the Commis-sion.
LILCO and the NRC Staff file their direct tes-timony (the Staff having previously is-sued SER Supplement No.
5, evaluating the low power request).
SC submits a letter saying, once again, that it has not been allowed sufficient time to produce testimony.
Day 34:
April 23 After a lengthy meet-ing, the Commission-leaves in place the Miller Board's April 6 l
order.
SC then seeks a tempo-rary restraining order from U.S. District 1
l i
Judge Johnson.
On less i
than two hours' notice, the judge hears argu-ment from all parties, based on an incomplete record from the Miller Board as presented by SC; the judge refuses to accept the remainder of the record tendered by LILCO.
The judge declines to rule that evening but promises a decision by 12:00 noon the next day.
Day 35:
April 24 Hearings begin on Long Island and continue throughout the day.
LILCO has in attendance 7 witnesses (4 from Long Island, 2 from San Jose, California, and 1 from Boston) and numer-ous supporting consul-tants from the same lo-cations.
Counsel for Governor Cuomo appears in the morning but leaves after lunch and does not reappear.
Day 36:
April 25 Hearings resume on Long Island.
At approxi-mately 11:30 a.m.,
shortly before the end of LILCO's direct case, Judge Johnson finally rules, issuing a TRO.
The hearings stop and the throng assembled to l
support them disperses.
Counsel for LILCO, SC l
and the NRC appear be-fore : Judge Johnson in Washington, D.C.,
re-
~
garding the bond to be posted by.SC.
4
1.
l Day 37:
April 26 Counsel for LILCO, SC and the NRC appear be-fore U.S. District Judge Gesell to sched-ule briefing and hear-ings on jurisdictional arguments and on other matters pertinent to whether a preliminary injunction should issue; LILCO agrees to file its brief within 1-1/2 days in order to obtain a May 3 hearing.
In response to Judge Gesell's questioning, SC advises that sched-ule alterations would not moot the lawsuit since the County has that morning amended its complaint by asking to enjoin further par-ticipation by Chairman Palladino, Chief Judge Cotter and Judges Mill-er, Bright'and Johnson.
Judge Gesell admonishes SC for having no factu-al allegations sup-porting its bias claims and for attempting to delay administrative hearings by resort-to the courts.
Following the schedul-ing conference, counsel for LILCO asks counsel for'SC whether any ac-commodation can be reached on scheduling.
The County responds-
.that it will'not dis--
cuss scheduling until the NRC indicates :its willingness to alter the schedule.
u
Late in the day, the Miller Board is in-formed that the Commis-sion has ordered a con-ference of the Board and parties regarding a new schedule.
The Board then sched-ules such a conference for 2:00 p.m.
the next day and advises the parties by phone.
LILCO is reached at 9:00 p.m.
SC does not then respond that it will be unable to at-tend.
Day 38:
April 27 Having cancelled a num-ber of prior business commitments, counsel for LILCO. travels from Richmond to Bethesda for the conference.
At 2:00 p.m. and again at 3:30 p.m. the Board and counsel for'LILCO and the NRC Staff attempt to comply with the Com-mission's directive of the prior. day.
Counsel for SC do not appear because of a prior en-gagement with their client.
The County does send a written statement insisting that the Miller Board have no further part-in the proceeding and i
setting August 7 as the earliest date accept-able to County for re--
newal of hearings.-
Shortly after 4:00 p.m.-
counsel for SC appear; by then the Board has left.
No one knows
.i
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whether the prior day's Commission order re-mains in effect.
Coun-sel for SC, LILCO and the Staff discuss the time for resumption of hearings.
As indi-cated, SC wants August 7; the Staff suggests a seven week delay; and LILCO the resumption of hearings the last week in May (that is, over two months ~after the filing of its March 20 motion).
A Deputy County Execu-tive fires the fourth political salvo for SC, renewing the County Ex-ecutive's attack of April 11.
Thus, the Deputy seeks to
" disestablish [the Miller] Licensing Board" and to prevent Chairman Palladino "from participating in any Shoreham-related matters."
LILCO. files with Judge Gesell motions to dis-miss, a motion to strike a County law-yer's affidavit, and two supporting briefs, indicating that the federal district court has no subject matter jurisdiction over-the scheduling or disquali-fication issues, that SC and Governor Cuomo fail to state a claim upon which relief can be' granted, that they fail to meet the Virginia Petroleum Jobbers test, and that a lawyer for SC has in-appropriately made him-self a witness in the proceeding.
LILCO ex-pects the TRO to be dissolved and the case to be dismissed on May 3.
Day 41:
April 30 The Commission produces its first enduring order (the order of April 26 apparently having been recalled without ever taking public written form).
Without hearing from the parties or awaiting action by the federal court, the Commission suddenly vacates the schedule adopted by the Miller Board 24 days earlier and sets argu-ment on issues easily identifiable over five weeks earlier when LILCO's March 20 motion was first filed.
Day 42:
May 1 Having attained their goal of delay by the Commission's April 30 order, SC and Governor Cuomo voluntarily dis-i miss their federal law-suit, thereby avoiding the merits of LILCO's and the NRC's position in that suit.
Day 45:
May 4 The parties file yet another round of briefs, this time with the Commission alone.
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Day 48:
May 7 Forty-eight days after LILCO asked that its low power' motion be im-mediately referred to the Commission, the parties again argue threshold issues con-cerning the law, facts and schedule, this time in front of the Commis-sion.
B.
In LILCO's view, the sequence of events just described is profoundly disturbing.
It is not disturbing because the Commission itself has taken an active interest in the matter.
LILCO sought such an interest on March 20.
To repeat:
As a practical matter, LILCO be-lieves that whether Shoreham is entitled to such a license is a question that only the Nuclear Regulatory Commission itself can decide.
The intensely political en-vironment that now 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.
LILCO's Supplemental Motion for Low Power Operating License at 3-4.
It is profoundly disturbing, first, because the issues that the Commission now wants to hear on May 7 have long been apparent; if the Commission wished to involve itself in them prior to completion of the Licensing Board's work,-it would l
have been far more productive to have done so in March.
Sec-ond, the inconsistency with which the Commission has acted is disquieting.
It inspires little confidence by LILCO, the nu-clear industry, an increasingly apprehensive financial communi-ty / or a thoroughly confused public in the stability of the 2
administrative process.
The inconsistency burdens parties pulled first one way and then another by rapidly fluctuating demands.
Especially unsettling is the Commission's sudden de-cision to abandon the Miller Board's procedural arrangements virtually on the eve of their defense before Judge Gesell; this action cannot be squared with the NRC's strenuous prior defense -
of the arrangements before Judges Johnson and Gesell, or with the distinct likelihood that they would have been successfully defended.3/
Finally, there is the unhappy possibility that political bullying has had its intended result.
2/
This community has become notably anxious that Suffolk County will succeed in its goal of prolonging the litigation of Shoreham until no life remains in LILCO.
3/
In LILCO's judgment, the federal suit would have been dis-missed for the reasons set out in LILCO's April 27th Motions to Dismiss, Memorandum of Law in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim Upon which-Relief Can Be Granted and in Opposition to Mo-tion for Preliminary Injunction, Motion.to Strike Affidavit of Lawrence Coe.Lanpher, and supporting Memorandum of Law.
C.
The factors just noted would be disturbing enough had they been isolated instances of confusion and drift, but they are not.
It seems that Shoreham's operating license proceeding is to be eternal.
The proceeding just entered its ninth year; it has been underway since April 1976.
To date, four different Licensing Boards -- and enough judges to staff six boardsi/ --
have sat on various aspects of the case; three boards are still sitting.
With few interruptions, the eight years since April 1976 have involved constant, complex licensing activity.
Hun-dreds of issues have been raised by a large array of interve-Immense informal and formal discovery has taken place --
nors.
e.g., hundreds of thousands of pages of documents have been formally produced or made available for inspection; the deposi-tions of over 115 people have been taken in places from New York to California; scores of issues have been settled after the informal exchange of great amounts of information and ex-tended discussion and negotiation.
Since the beginning of 4/
Listed in alphabetical order, 17 NRC judges have dealt so far with the Shoreham OL proceeding:
Bowers, Brenner, Bright, Carpenter, Carter, Cline, Ferguson, Frisiak, Harbour, Head, Johnson, Jordan, Laurenson (on two boards), Miller, Morris, Paris, and Shon (on two boards).
i l
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formal evidentiary sessions two years ago, over 14,500 pages of written direct testimony have been served; over 160 days of hearings have been held; and the transcript has passed 30,000 pages.
Since 1976, simply the rulings by the various Licensing and Appeal BoaLds involved in the proceeding, as well as by the Commission itself, have exceeded 2,800 pages.
As suggested by the vast amount of time consumed and verbiage generated, the licensing process has often moved at a glacial pace.
Along the way, due process in excess has been provided to those who wished to question and challenge the Shoreham application.
With rare exception, and none pertinent to low power operation, all questions and challenges to date --
once tested during sworn adjudicatory hearings -- have been persuasively answered or refuted.
As the massive Partial Ini-tial Decision of September 21, 1983 makes unsvoidably clear, due process in excess has not resulted in showings of inadequa-cy at Shoreham.5/
5/
See generally Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445 (1983).
The quality assurance litigation is indicative.
After near-interminable discovery and hearings, SC's claims were emphat-ically rejected.
See 18 NRC at 578-622 (opinion alone; find-ings not published).
The Brenner Licensing Board noted its frustration with the County's mistreatment of the vast QA record:
Once again, the Board, in reaching its con-clusions on these contentions, is faced with a (footnote cont'd)
Confronted by this situation LILCO has been driven to ask for expedition on numerous occasions.
The request accompa-nying the Company's March 20, 1984 motion is only the latest in a long series of attempts by the Company to obtain rudimentary fairness for the applicant, including an end ultimately to the licensing proceeding.
While LILCO does ask for expedition now, as often in the past, by no stretch of imagination has this operating li-cense proceeding involved a rush to judgment.
No case that has already involved four Licensing Boards, 17 NRC judges, and (footnote cont'd) massive record, based on 55 days of hearing, ex-tensive written testimony and exhibits, and vo-luminous proposed findings of fact and opinions by the parties that are disparate, at least.
The difficulty of our task, trying to be objec-tive in consideration of each of the parties' submissions, is further compounded by the Coun-ty's misrepresentation of the complete record --
by omission, selective citations and distortion of recorded testimony.34/
34/ Our view of the County's performance is strictl,i our own.
Our conclusion, however,-is not without independent, if biased,'corrobora--
tion.
LILCO, on its own initiative, took the trouble of analyzing all 732 proposed findings of the County.
It found 365 (50%) of them inac-curate, for 439 reasons (157 out of context, 100-with no citation, 105 with unjustifed inference and 67 refuted on the record).
18 NRC at 579.
J eight years can conceivably be viewed as a rush to judgment.
Quite to the contrary, this proceeding's place in history is secure as one of the most protracted, intense adjudications in American administrative practice.
Expedition now to bring one phase of the proceeding to a conclusion will not offend due process.
The obverse would; it has long since ceased to be ei-ther fair as a matter of law or desirable as a matter of public policy to compel LILCO to devote tremendous human and financial resources to litigation that has already gone beyond the outer bounds of that which would be deemed tolerable in any other ju-dicial or administrative setting.
Against this background, the psychodrama of the past 48 days is acutely unfortunate.
The time is long overdue for.the NRC to engage the Shoreham proceeding in a systematic, coherent and expedited fashion.
We respectfully urge, and fervently hope, that such will be the case after May 7th.
II.
RESPONSE TO COMMISSION INQUIRIES Paragraph 2 of the Commission's April 30 Order asked the parties to address the.three following questions:
(1)
The Board's Order states that if public protection at low power operation without the diesel generators required for full power operation is equivalent to (or greater than) the protection afforded to the public at full power operation with such ap-proved generators, then LILCO's motion for i
low power authorization should be granted.
In these circumstances, what justification is there for waiving the emergency preparedness I.
requirements applicable to full power op-eration?
(2)
What is the legal basis for holding that General Design Criterion 17 is not ap-plicable for low power operation?
Would this argument apply to other criteria?
(3)
What would be the technical justifi-cation for authorizing low power operation without the onsite electric power system re-quired by GDC 17?
What would be the basis of any calculation or judgment that protection to the public at low power under-these cir-cumstances would be greater than or equal to public protection at full power?
LILCO will address these inquiries as follows.
- First, j
we discuss question (2) concerning the legal justification for LILCO's Supplemental Motion for Low Power License and why as a matter of law it is not necessary to complete hearings on the-TDI diesel generators before issuance of a low power license.
Second, we address question (1) concerning'the standard for judging LILCO's proposal and the concomitant inquiry about emergency planning.
Third, we address question (3). dealing.
with the technical justification for' authorizing low power op '
1 eration without the TDI diesel generators.
Finally, questions of recusal and schedule are considered.
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. 4 A.
Completion Of Hearings Concerning The TDI Diesels Is Not A Necessary Predicate For Issuance Of A Low Power License I
A consistent reading of the Commission's regulations affords LILCO the right to seek a low power license without first completing hearings concerning the reliability of the TDI diesel generators.
Individual regulations should not be con-strued in a vacuum.
They must be harmonized.
Thus, the re-quirements of GDC 17 must be read in concert with 10 CFR S 4
50.57(c) providing for interim low power licensing absent com-l pletion of hearings necessary for full power operation.1/ This harmonizing of regulations is not new.and its implementation here does not deviate from past practice.
Previous Licensing Boards and the Commission have recognized the lower risks at-
]
tendant te low power testing.
Consequently, they.haveLacknowl-edged the lesser need for literal compliance with all regula-tions otherwise attendant to operation at full power.
Section 50.57(c) provides, in pertinent part, that:
An applicant may, in.a case where a hear--
ing is held in connection with a pending pro-i ceeding under this section make a motion in writing, pursuant to this paragraph (c), for I
6/
Contrary to the implication of-the Commission's question i
Tn paragraph 2(2) of its April 30 Order, the Licensing Board' did not hold and LILCO does not contend "that General Design Criterion 17 is not applicable for low power' operation."
GDC 17 applies and its purpose will be fulfilled.
It should not, however, be construed in isolation from other regulations.such as S 50.57(c).
l an operating license authorizing low-power testing (operation at not more than 1 percent of full power for the purpose of testing the facility), and further operations short of full power operation.
Action on such a mo-tion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized.
10 CFR S 50.57(c).1/
This regulation obviously contemplates an interim li-censing proceeding to allow low power testing when full powsr licensing proceedings are incomplete.
As the Diablo Canyon Li~
censing Board recognized:
Historically 5 50.57(c) motions have usually been made prior to the closing of the record in operating license proceedings, but after the completion of the record on any.conten-tions which are relevant to the sought-for testing license.
This timing permitted the presiding officers to make the necessary findings and conclusions with respect to _the testing license prior to the completion of the record on all contentions.
I 7/
The County and Governor Cuomo have no pending contentions concerning LILCO's Supplemental Motion for' Low Power License.
Nor is the filing of a S 50.57(c) motion generally'an appropri-ate opportunity for filing new contentions.
E.g.,
Pacific Gas
& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 803 n.78 (1983);-Pacific-Gas &
Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and l
2), LBP-81-5, 13 NRC 226, 233-(1981).
Throughout Shoreham's lengthy operating license proceed-ing, there have been no contentions _ raised concerning LILCO's offsite power system, though there has been ample opportunity to do so.
i.
For purposes of the S 50.57(c) motion, the contentions were those previously allowed in the proceeding.
Contentions were considered
" relevant" to the motion to the extent that they needed to be resolved prior to criti-cality.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP 81-5, 13 NRC 226, 232-33 (1981).
Absent such an interpretation, 5 50.57(c) would be su-perfluous.
If a plant met all regulations necessary for full power operation, there would be no need for interim low power licensing.
No applicant would undertake the expense and com-mitment of resources to participate in an unnecessary licensing proceeding.
As the Licensing Board's April 6 Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for Low-Power Operating License stated, "[t]he very purpose of this regulation.is to permit motions for low-power operations where, as here, the licensing proceedings are not completed because of pending hearings on the satisfaction of all of the requirements of GDC-17, among others."
Board Order at 12.
This approach is neither unique nor of recent vintage.
More than two years ago,-before the amendment of 5 50.47, the l
Licensing Board in the San Onofre proceeding employed a similar l
l analysis.
Southern California Edison Co. (San Onofre Nuclear
[
Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 188-90 (1982).
There, the applicants had no offsite emergency pre-i paredness plan as required by regulation,.though the~ plant was
otherwise ready to engage in low power testing.
The appli-cants' low power motion "was predicated upon.
. a showing to be presented concerning the relatively lower accident risks as-sociated with low-power, compared to full power, operations."
15 NRC at 185.
The Board's conclusion that no offsite emergen-cy plan was necessary is instructive here:
The Commission itself recently endorsed the general proposition that fuel loading and low-power testing--
involved minimal risk to the public health and safety, in view of the limited power level and correspondingly limited amounts of fission products and decay heat, and greater time available to take any necessary corrective action in the event of an accident.
The Staff's technical presentation in this case reflected substantial research and amply demonstrated the applicability of the Commis-sion's statements to San Onofre Unit 2.
Spe-cifically, we find that even in the case of the most serious (and extremely unlikely) postulated accident, there would be some 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> available for diagnostic and mitigative actions before core melt would occur.
More time would be available for more' credible events.
In addition, the fission inventories produced by low-power operations of limited duration are a fraction of those produced at full power.
Furthermore, the capacity re-quired for heat removal is reduced at low power.
On the basis of these factors, we conclude that low-power operations of Unit 2 at San Onofre, as proposed by the Applicants, will involve substantially less risk to the public health and safety than full power op-erations.
I L
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i 15 NRC at 190.
Though San Onofre had an onsite emergency plan, the Board observed that " arguably, one might exempt an appli-cant from on-site requirements that are irrelevant to low power."
15 NRC at 193 n.ll4.E/
Another Licensing Board reached a similar conclusion, holding that there was no need for emergency planning matters to be resolved prior to low power licensing hearings.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-21, 14 NRC 107, 121-23 (1981).
Nor is the reasoning evident in these two decisions limited to unresolved emergency planning matters.
In Duouesne Licht Co. (Beaver Valley Power Station, Unit No. 1), LBP-76-3, 3 NRC 44 (1976), an auxiliary river water system was required for full power operation to provide sufficient redundancy for safe shutdown in the event the main intake structure was R/
That the Board's analysis was premised in part on S 50.47(c)(1) is of no consequence here.
Section 50.47(c)(1) af-fords an applicant an opportunity to demonstrate that it need not meet all applicable emergency planning standards.because they are "not significant for the plant in question."
As the San Onofre Board noted, however, S 50.47(c)(1) does not explic-itly provide separate and less stringent standards for low power operation.
It does not explicitly allow the complete ab-sence of an offsite emergency plan for low power testing.
The willingness of the San Onofre Board to apply a less stringent standard for low power testing can only bave resulted from i s t
recognition that the Commission's regulations applicable for full power licensing must be read in harmony with the regulato-ry provisions for interim low power licensing and, accordingly, interpreted in light of low power operating conditions.
,\\
)
damaged.
After hearing evidence concerning the nature of ac-tivities proposed by the applicant and the resulting fission product inventory, the Licensing Board found that operation of the plant for low power testing did not constitute an undue risk:
The Applicants have testified that the dura-tion of operation at up to 5 percent of full
~
power will.be less than that required for the fission product inventory of the core to-build up to 5 percent of its equilibrium full power.value.
This testimony regarding the accidents occurring at power levels not_ex-ceeding 5 percent has been reviewed by the Board.
The consequences have been found to be acceptable, even in the absence of an aux-iliary river water system.
Based upon the foregoing, the Board finds that the proposed limited low power operation of the Beaver Valley Unit 1-facility does not constitute an undue risk to the health and safety of the public and is acceptable insofar as con-ducting such operations without an auxiliary water system is concerned.
3 NRC at 63.
As the Miller Board held in its April 6 Memorandum and order, such flexibility in evaluating the readiness of a plant to engage in low power testing. requires that LtLCO be_ afforded the opportunity to present its_ evidence that Shorehamisatisfies GDC 17 as applied to low power, testing.
The issue is whether LILCO.can engage in the proposed activities without endangering the public health and safety.
In pertinent part, GDC 17 reads assfollows:
An onsite electric power system and an off-l site electric power system shall be provided to permit functioning of structures, systems, and components important to safety.
The safety function for each system (assuining the other system is not functioning) shall be to provide sufficient capacity.and capability to assure that (1) specified acceptable fuel de-sign limits and design conditions of the re-actor coolant pressure boundary are not ex-ceeded as a result of anticipated operational i
occurrences and (2) the core is cooled and containment integrity and other vital func-tions are maintained in the event of postu-l lated accidents.
t 10 CFR Part 50, Appendix A, GDC 17.
For full power operation, LILCO will have a qualified "onsite" power source.
For low
~
power testing, however, such an "onsite" qualified power source' is not necessary to satisfy GDC 17.E/
Instead, LILCO has l
proved that it has sufficient redundancy in its offsite elec-i i
tric power system and the added 20 MW gas turbine and four GM EMD diesel generators at the site to assure that fuel design limits and design conditions of the reactor pressure boundary will not be exceeded as a result of anticipated operational oc-currences and that the core will be cooled and containment in-f tegrity and other vital functions maintained in the event of
}
postulated accidents.
9/
LILCO's "offsite" AC' power supply for Shoreham includes two emergency power sources physically at.the site.- Both the 20 MW gas turbine and four GM EMD 2.5 MW diesel generators.are at Shoreham and will start automatically upon the loss.of other offsite power supplies.
4 f
i
The Commission has recently employed an indistinguish-able analysis.
Though numerous issues remained unresolved with respect to quality assurance at the Diablo Canyon facility, the Commission recognized that there was no need for hearings con-cerning Pacific Gas & Electric's request to load fuel and con-duct precriticality testing because these activities presented-no significant safety issues:
Since there are no significant safety is-sues material to fuel loading and pre-criti-cality testing, and there will be no preju-dice to future Commission decisions, a consideration of the equities favors denial of the Joint Intervenors' request to' defer the decision on the. licensee's request for reinstatement and extension of'the license to load fuel and conduct pre-criticality testing pending the holding of a hearing on the-li-censee's request.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-83-27, 18 NRC 1146, 1149 (1983).
Similarly, for proposed Phases I (fuel load and pre-criticality testing) and II (cold criticality testing)'at.
Shoreham,1E/ the evidence before the Commission demonstrates that no AC power is needed to achieve compliance with~GDC 17.11/
That criterion requires only that an onsite electric 10/. The activities in Phases I and II.are discussed in more detail at pages.33 through 36 below.
11/
Neither the County nor Governor have challenged.LILCO's' assertion that no AC power is needed to cool-the core during Phases I and II, nor have the-intervenors challenged LILCO's Chapter 15 analysis for any of the four phases..
power system and an offsite systen " provide sufficient capacity and capability" to achieve the specified goals.
With respect to Phases I and II, the " sufficient capacity" is zero.
- Hence, no onsite AC power source is necessary to meet the criterion's requirements.
With respect to the activities sought to be licensed for Phases III (heat-up and low power testing up to 1% of rated power) and IV (low power testing from 1% to 5% of rated power),12/ LILCO has followed the reasoning of previous Licens-ing Boards to demonstrate that the proposed low power testing will pose no undue risk to public health and safety.
As dis-cussed below, LILCO has used the existing FSAR Chapter 15 safe-ty analysis as a benchmark to ascertain whether operation of Shoreham as proposed presents any undue risk to the public.
LILCO's evidence aroves that even in the event of a loss of coolant accident during Phase IV, a minimum of 86 minutes,.and a more realistic estimate of more than three hours, would be-available to restore necessary cooling to the core.
In the event of an accident or transient without a loss of coolant ac-cident, more than 30 days would be available before AC power was needed.
LILCO has further proved that, through its exten-sive offsite power sources, it would be able to restore AC 12/
Phases III and IV are more particularly described at-pages 36-37 below.
power within far less than the time required.
As described in the affidavits and testimony of LILCO's witnesses during the hearings on April 24 and 25, AC power to Shoreham can be re-stored through many sources in a matter of minutes.
The Licensing Boards for San Onofre, Diablo Canyon and Beaver Valley engaged in similar analyses.
Indeed, this Com-mission engaged in a similar analysis when it determined that emergency planning was not necessary for issuance of a low power license and in granting Diablo Canyon a license for fuel loading and precriticality testing.
In short, the analytical -
approach taken in LILCO's March 20 motion is not unique.
- Thus, there impose full power licensing requirements on low power testing at Shoreham.13/
B.
Standard For Judgina LILCO's Motion The Commission has already concluded that operation of a nuclear plant without an offsite emergency plan does not present an undue risk to the public health and safety for 13/
The Commission has inquired whether other criteriz
operation at power levels up to 5% of rated power.
46 Fed.
Reg. 61132-33 (1981); Long Island Lichtino Co. (Shoreham Nucle-ar Power Station, Unit 1), CLI-83-17, 17 NRC 1032 (1983';
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 188-90 (1982).
Given this determination, LILCO's Supplemental Motion requires only an assessment of whether the absence of TDI diesels during low power testing poses undue risk to public health and safety.
Accordingly, the Board's April 6 Order announced a broad standard for judging LILCO's low power motion:
The Board will be required to determine whether there is reasonable assurance that the activities associated with LILCO's request for a low-power license can be conducted without endangering the health and safety of.the public, in the absence of resolution by another licens-ing board of the emergency diesel genera-tor contentions related to full-power op-eration.
Board Order at 6.
The Board based its reasoning in part on Shoreham's September 21, 1983 Partial Initial Decision:
Even though we resolve all contentions which are the subject of this Partial Initial Decision-favorably to LILCO, at least insofar as operation at levels up to five percent of rated power is con-cerned, we do not authorize the issuance of the license for fuel loading and low power operation which LILCO has requested l
at this time.- No such license may be au-thorized until such time as that portion of Suffolk County's:recently admitted-l t
l
l l.
l l
emergency diesel generator contention may l
be resolved in LILCO's favor, at least insofar as necessary to support a finding of reasonable assurance that Shoreham can be operated at levels up to five percent of rated power without endangering the health and safety of the public.
18 NRC at 445.
Moreover, the Commission has specifically ruled that offsite emergency planning matters need not be resolved i
prior to low power testing by LILCO.
Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-83-17, 17 NRC 1032 (1983).
Accordingly, inherent in the standard set by the Miller Board is the assumption that LILCO has requested permis-sion to operate Shoreham at low power levels without relying on l
the TDI emergency diesel generators and without having a fully litigated offsite emergency plan.1A/
11/
The Miller Board provided guidance for determining whether the broad standard has been met:
If the evidence shows that the protection t
afforded to the public at low power-levels without the diesel generators required for full power operations, is equivalent to (or greater than) the protection afforded to the public at full power operations with approved generators, then LILCO's motion should be granted.
Board Order at 7.
As with the broad standard, this specific factual inquiry must inherently include the assumption that Shoreham will not have fully litigated diesels or an offsite emergency plan during low power operation.
i The Bcard, therefore, has essentially mandated a com-parison between the protection provided by Shoreham in its cur-rent configuration and that provided by a plant operating at 5%
power without an emergency plan but with approved diesel gener-ators.
It follows that if LILCO can demonstrate that the anal-ysis of a particular accident or transient is independent of the onsite diesel generators, no further inquiry is necessary; the consequences of this event will be the same as those for a plant operating at power levels up to 5% with approved diessi generators.
Where an accident or transient does rely on the use of onsite diesel generators, LILCO must demonstrate that, under the circumstances present at'Shoreham, the event will not result in consequences more severe than those resulting from l
the same accident at a plant that has approved diesel genera-tors.1E/
As demonstrated below, LILCO has done this by proving that for accident and transient events that rely on diesel gen-erators, there is ample time to restore power to provide the necessary core cooling prior to the onset of any fuel damage.
Since fuel damage will not occur, th'ere is reasonable assurance that the consequences of the accident or transient event will not exceed those of a plant with approved diesel generators operating at 5% of rated power.
o 11/
In any such an analysis, Shorehar[must~ de compared to a plant that meets regulatory requirements.
To the extent Shoreham exceeds regulatory requirements in pertinent areas (e.g., offsite power sources), the comparicon must favor LILCO.
I
/
s
V -
In short, LILCO's analysis has been performed in a way that obviates the need for any consideration of offsite emer--
gency planning.
C.
Technical Justification For Authorizing Low Power Operation Assuming The Unavailability Of Onsite Diesel Generators The technical justification for operation of Shoreham during the activities proposed for low power testing was origi-nally presented in the affidavits accompanying LILCO's March 20 motion.15/ The information presented in those affidavits was l
refiled as written direct testimony on April 20, for use during-l hearings conducted by the Licensing Board on April 24-25.
While the format of this testimony differs from the affidavits, its substance does not.11/
11/
The affidavits served March 20 included the following:
Affidavit of Jack A. Notaro and William E.
Gunther, Jr. (Notaro Affidavit);
Affidavit of William G. Schiffmacher (Schiffmacher Affidavit);
1 Affidavitlof Dr. Glenn G. Sherwood, Dr.
Atambir S. Rao and Mr. Eugene C. Eckert (Sherwood Affidavit); and Affidavit of William J. Museler (Museler Affidavit).
12/
The testimony included:
(footnote cont'd)
. The evidence just identified describes the activities to be conducted during four phases of low power testing at i
l Shoreham, the applicable safety analysis, and LILCO's ability to provide AC power in response to anticipated accidents.
The four phases include : -
Phase I:
fuel load and precriticality
- testing, Phase II:
cold criticality testing, Phase III:
heat up and. low power testing to rated pressure / temperature conditions (ap -
proximately 1% rated power); and Phase IV:
low power testing (l'-5% rated power)
To assure that the activities proposed during these phases of low power testing vill not pose any undue risk to the public health and safety, LILCO reviewed the spectrum of acci-dents and transients considered in Chapter 15 of the Shoreham Final Safety Analysis Report (FSAR), usint '.the assumption that (footnote cont'd)
Testimony of William E. Gunther, Jr. -
(Gunther, ff. Tr. 198);
~.4 i
Testimony of Atambir S. Rao; Eugen^ L
~
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Eckert, George F.' Dave and Rober".
Kascsak (Rao, et al., ff. Trp ;t ~ 'i I
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Testimony of William'G. Schi~ffm6cher
- l (Schiffmacher, ff. Tr. 480)i(and'. A,-.
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TestimonyofWilliamI.-Museler[(Museler, ff. Tr. 554).
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the existing onsite AC power source was not available.
Chapter 15 of the Shoreham FSAR provides the results of analyses for the spectrum of accident and transient events that must be ac-commodated by the plant to demonstrate compliance'with the NRC's regulations.
Sherwood Affidavit at 14; Rao, et al., Tr.
275.
The proper scope of Chapter 15 of Shoreham's FSAR was the subject of previous review and litigation in this proceeding.
The NRC Staff reviewed the Shoreham FSAR, including the Chapter 15 analysis, and approved that analysis in its Safety Evalua-tion Report for Shoreham.
Sherwood Affidavit at 1 4; Rao, et al., Tr. 276.
The Brenner Licensing Board, in its Partial Ini ~
tial Decision of September 21, 1983, found that the-spectrum of events analyzed in Chapter 15 was appropriate and adequate. 11 8 NRC 565-67.
Consequently, it is appropriate to rely on Shoreham's' Chapter 15 analysis as a basis for judging the pro-tection provided to the public.18/
Described below is a summary of LILCO's evaluation of the Shoreham plant for the activities proposed during Phases I through IV.
It demonstrates that those activities will pose no undue risk to the public health and safety.
18/
The County has hired no consultants and proffered no evi-dence concerning this analysis.
The Staff. agrees with.LILCO's-analysis.
Thus, any further proceedings should' focus only upon-LILCO's ability to restore power within the parameters estab-lished by the Chapter'15 review.
l l
1.
Phase I:
Fuel Load and Precriticality Testing The technical justification for operation of Shoreham during this phase is set out in more detail in LILCO's motion for summary disposition concerning Phase I activities, filed with these comments.
In summary, during Phase I there are no fission products in the core.
Therefore no decay heat would be generated following an accident and there would be no radioac-tive materials to be released from the reactor.
As a result, no AC power, either onsite or offsite, is required to protect _
the public health and safety during this phase.
Accordingly, even if one of the accident or transient events analyzed in Chapter 15 were to occur (and most are impossible or highly un-likely), there would be no risk to the public health and safe-ty.
2.
Phase II:
Cold Criticality Testing Again, detailed justification for permitting ~ operation of Shoreham during Phase II is contained in LILCO's motion for summary disposition concerning Phase II.
As in Phase I,_during Phase II, the accident and transient events analyzed in Chapter 15 would pose no threat to the public health and safety, even assuming the unavailability of an onsite power; source.
The fission products generated at the extremely low power levels
(.0001% to.001%) achieved during Phase II testing, and the
- ~
short periods of time at these power levels, produce an ex-tremely low level of fission products in the core.
Thus, there is essentially no radioactivity to be released to the public in the event of an accident and there is essentially unlimited time available to restore cooling to the core.
3.
Phases III and IV:
Heat Up and Low Power Testing (up to 1% and 1%-5% of Rated Power)
During Phase III of low power testing, reactor heatup and pressurization are achieved, and the power level is taken to approximately 1% of rated power.
In Phase IV, testing is performed at power levels up to 5%.
Operation of the plant during Phases III and IV poses far less risk to the public health and safety than does operation of the plant at 100%
rated power.
This reduced risk is generally attributable to three factors.
First, operation at low power results in a small inventory of fission products in the core compared to full power operation.
This low fission product inventory sub-stantially reduces the' amount of decay heat present in the core following shutdown and substantially reduces the radioactivity.
in the core that could be released upon fuel failure.
Sherwood Affidavit at 1 26; Rao, et al., Tr. 307.
Second,. operation of.
the plant at low power gives the operator increased response time to take appropriate manual actions.
This minimizes the-severity of transients and in some cases prevents the need-for
automatic operation of the plant's safety systems.
Sherwood Affidavit at 1 27; Rao, et al., Tr. 300-01.
And third, capaci-ty requirements for mitigating systems (such as cooling and ventilation systems) are substantially reduced because of the low power levels.
This reduces the amount of plant equipment needed to mitigate events (i.e.,
fewer pumps) and, as a result, reduces AC power requirements.
Sherwood Affidavit at 1 28; Rao, et al., Tr. 301.
Again, Chapter 15 of Shoreham's FSAR provides the framework for assessing protection of the public health and safety during Phases III and IV, assuming the TDI diesels are unavailable.
Of the 38 events included in Chapter 15, three cannot occur during these phases.
Sherwood Affidavit at 1 24; Rao, et al., Tr. 298.
Of the remaining 35 events, 31 do not require an' assumption of the loss of offsite AC power concur-rent with the event.
Thus, the assessment of these Chapter 15 events during Phases III and IV is unaffected by the status of.
the diesel generators, since they are not required to mitigate these events.
Sherwood Affidavit at 1 25; Rao, et al., Tr.
302.
For the four thapter 15 events that do assume a loss of offsite AC power, the existing analyses rely in some measure on the availability of an onsite power supply..Therefore, the.
I issue is whether there is reasonable assurance thatLemergency l
AC power will be available to accomplish the required safety functions normally powered from the onsite power supply.
The four pertinent events are loss of AC power, pipe breaks inside the primary containment (loss of coolant accident), pipe breaks outside primary containment (steam line break accident) and feedwater system piping break.
Sherwood Affidavit at 1 29.
Of these four events', the loss of coolent accident event is poten-tially the most significant because it has the potential for the most severe loss of coolant inventory in the reactor ves-sel.
Sherwood Affidavit at 1 29; Rao, et al., Tr. 302.
In the unlikely event of a LOCA during Phase III, a realistic assess-ment of the accident sequence indicates that more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> would be available to restore AC power without exceeding fuel limits specified in 10 CFR S 50.46 and Appendix K.
Rao, et al., Tr. 302.
Even using very conservative assumptions, more than six hours would be available to restore cooling to prevent the core from exceeding 10 CFR 5 50.46 limits.
Rao, et al.,
Tr. 303.
And during Phase IV, more-than three hours would be available under a realistic assessment; 86 minutes would be available_even under the extremely conservative Appendix K-as-sumptions.
Rao, et al., Tr. 307.
Moreover, even if the Appen-dix K limits were reached, there would be no release of fission products during Phases III and IV'because no. fuel perforation would occur; at low power there is a significant margin'between
the Appendix K temperature limit and the temperature at which cladding perforations would occur.
Rao, et al., Tr. 307, 309.
The public health and safety will be protected because AC power will be available in sufficient time to mitigate these events.
LILCO's affidavits and testimony have shown that it strains credulity to assume that all AC power to Shoreham will be lost.
And further, even if that assumption is made, AC power can be restored to Shoreham from a multitude of power sources in a matter of minutes -- far less than the time avail-able to restore power in the event of a worst case accident.
These conclusions are apparent from the following analysis.
a.
At the outset, a LILCO system-wide blackout is not likely.
LILCO's bulk power transmission system has a generating capacity of 3,721 megawatts, achieved through a com-bination of various types of generating units.
Since the Northeast Blackout of 1965, there has been no loss of the en-tire LILCO grid.
Only once since then has LILCO lost any ap-preciable portion of its transmission system. 'Despite the lack of any procedures then in effect for restoring power.to Shoreham, power was completely restored in slightly over one hour.
If such an event were to occur today, power could'be re.
stored within minutes using any one of a number of facilities l
l l
l I~
and procedures now available.
Schiffmacher Affidavit at 1 10; Schiffmacher, Tr. 520.19/
Moreover, LILCO's 138 KV and 69 KV high voltage trans-mission network is tied to the New York Power Pool and the New England Power Exchange.
Thus, in the event LILCO suffered an internal power deficiency, ample power would be available to LILCO through three interconnections with the New York Power Pool and one interconnection with the New England Power Ex-change to supply power to Shoreham.
Schiffmacher Affidavit at 11 7, 9; Schiffmacher, Tr. 522-24.
b.
4 The configuration of LILCO's transmission circuits feeding Shoreham further assures the availability of power:to the site.
Shoreham is served by multiple circuits over differ-ent rights-of-way, as well an underground line.
Four 138 KV transmission circuits run to Shoreham along two separate and independent rights-of-way.
Additionally, three 69 KV circuits enter the Wildwood Substation, approximately one. mile south of Shoreham, and, from there, a separate 69 KV line enters the site.
Schiffmacher Affidavit at 11 12, 13; Schiffmacher, Tr.
19/
The Schiffmacher testimony was improperly collated when bound into the transcript.
LILCO will cite the transcript pages as marked even though they are not in the proper se-i quence.
l l
517-19.
Significantly, LILCO's transmission facilities for Shoreham exceed the regulatory requirements contained in GDC 17, which states in pertinent part that:
Electric power from the transmission network to the onsite electric distribution system shall be supplied by two physically indepen-dent circuits (not necessarily on separate rights of way) designed and located so as to minimize to the extent practical the likeli-hood of their simultaneous failure under op-erating and costulated accident and evironmental conditions.
A switchyard common to both circuits is acceptable.
10 CFR Part 50, Appendix A, GDC 17.
c.
The ability to provide power to Shoreham is further as-sured by a number of independent gas turbines located at vari-ous places on LILCO's system and designed to start during sys-tem blackout conditions.
There are 10 gas turbines at Holtsville (approximately 20 miles from Shoreham), five of which will have black start capability.22/
Schiffmacher Affi-davit at 1 18; Schiffmacher, Tr. 508.
Actual tests have shown that power can be restored to Shoreham using these gas turoines in six minutes.
Schiffmacher Affidavit at 1 18; Schiffmacher, Tr. 508.
Restoration of power using Holtsville gas turbines 1
20/
" Black start" means the ability to start independently of another power source.
1 I
will be tested bi-weekly during Phases III and IV using a pro-cedure designed for restoring power to Shoreham.
Schiffmacher Affidavit at 1 18; Schiffmacher, Tr. 507.
d.
Providing still more black start power capability in the event of a system blackout are two gas turbines east of Shoreham at Southold and East Hampton, either of which is capa-ble of supplying adequate power to the plant.
These units op-erate independently of the 10 Holtsville gas turbines.
Schiffmacher Affidavit at 1 19; Schiffmacher, Tr. 502-06.
Each-of these sources will be tested periodically.
Museler, Tr.
577.
Moreover, LILCO has black start gas turbines at each of its major generating stations, including Port Jefferson, which is 11 miles west of Shoreham and connected to it through a 69 KV line.
Schiffmacher, Tr. 500-01.
e.
If one assumes the failure of all of the sources of power discussed so far, despite their diversity, redundancy and reliability, AC power can still be supplied to Shoreham using a dedicated 20 MW gas turbine on the Shoreham site.
This turbine is equipped with a fully automatic black start capability.
It will start automatically upon the loss of voltage to the 69 KV l
e.
bus and can restore power to the plant's emergency buses in 4
less than three minutes.
Schiffmacher Affidavit at 11 20-24; Schiffmacher, Tr. 495-500.
This source of power will also be tested periodically.
Museler, Tr. 577.
f.
Finally, despite the remote possibility that all of the power sources described above will fail, LILCO has installed a block of four 2.5 MW black start diesel generators at Shoreham.
l These four General Motors EMD units will be connected directly into the plant's 4 KV bus network and can supply power to the plant's emergency buses.
Schiffmacher Affidavit at 1 25.;
Schiffmacher, Tr. 493-94.
These diesels will bypass the sta-tion's normal service transformer and reserve service'trans-former in the event emergency power is needed.
Id.
Only one of the four General Motors EMD units will be necessary to pro-vide the power required for safe shutdown under normal or acci-dent conditions.
Schiffmacher, Tr. 492.
j In sum, there is a backup for every credible failure of AC powar and more.
If an unlikely system-wide failure occurs, power is available through the two power pools to which LILCO is connected and from black start gas turbines at each of LILCO's major generating stations.
If these sources fail, in-dependent black start gas turbines at three locations away from
Shoreham will provide power to the plant in minutes using the available transmission system.
If the entire transmission sys-tem fails, the 20 megawatt gas turbine located at the site is available to start automatically and provide power to Shoreham.
And if that gas turbine fails simultaneously with the-collapse of everything else, there still remain the four GM EMD diesel generators also located onsite, only one of which is needed to serve required plant loads.
Given all of these power sources, it is highly unlikely that Shoreham will ever lose offsite power during Phases III and IV operation.
But if even if such a loss were to be as-sumed, the protection afforded public health and safety is es-sentially the same as that afforded any other plant operating 5% power.21/
As noted above, even in the most limiting at Chapter 15' event, the loss of coolant accident, more than six 21/
Although differing in context, the reasoning of the Appeal Board in Florida Power and Licht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-603, 12 NRC 30 (1980), indicates the interrelationship of power sources in determining compliance with GDC 17 The Licensing and Appeal Boards there observed that onsite diesel generators were inherently unreliable, even though technically in compliance with with GDC 17 In consid-ering whether GDC 17 was nonetheless met, the Appeal Board noted that "the ability to restore some source of AC power after.a station blackout provides reasonable assurance that such an event will not result in core damage or undue hazard to the public health and safety".
12 NRC'at 60-61, see also
~
Consumers Power Co. (Big Rock Point Nuclear Power Station),
CLI-76-8, 3 NRC 598 (1976) (one onsite diesel acceptable in light of high availability of offsite power).
l j
i ~
i j
l hours in Phase III and 86 minutes in Phase IV would be avail-able to restore power using very conservative analytical as-i sumptions.
In reality, more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> and 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> respec-tively, would be available to restore AC power before there would be any risk that fuel limits specified in 10 CFR S 50.46 l
would be exceeded during Phases III and IV.
To further assure safety of the plant during Phases III I
and IV, LILCO will initiate reactor cold shutdown in the event of certain conditions that threaten the normal offsite power.
1 l
supply.
These conditions include:
(A) A " hurricane warning" for the'Shoreham i
area issued by the National Weather Ser-i vice; (B) A " tornado watch" or a " severe thunder-storm watch" for the Shoreham area issued by the National Weather Service; (C) A " winter storm watch" for the Shoreham area issued by the National Weather Ser-1 vice, including ice storms; (D) A coastal flood warning for the Shoreham area issued by the National Weather Ser-i vice, predicting that a high tide greater i
than five feet above normal high water will occur within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />; 1
(E) An indication of seismic activity of.01g l
on the Shoreham' seismic monitors; i
i (F) The outage of two of the four LILCO i
interconnections to the New York Power.
Pool and the New England Power Exchange; 4
-(G) A low electric frequency condition on the LILCO transmission system which reaches.
1 the alarm setpoint.
I 1
I i
L
~
)
Museler, Tr. 561-62.
These commitments substantially diminish the already remote possibility of a complete loss of offsite power during low power testing.
Finally, LILCO has made a num-ber of other testing commitments to reduce even further the possibility that offsite power will be lost at Shoreham.
Museler, Tr. 576-78.
III.
RECUSAL Since April 11, representatives of the County have ad-vanced improper and unfounded demands for the disqualification ~
of Chairman Palladino, Judge Cotter, and Judges Miller, Bright and Johnson.
At least three times the County has made these demands; each time it has failed to assert any proper basis for disqualification.
It has yet to file a motion for disqualifi-cation pursuant to 10 CFR 5 2.704.12/
Apparently the County has no valid basis for disqualification and is using demands for it as yet another ploy to delay hearings.ll/
The disqualification issue ought to be addressed now and summarily.
First, it is incumbent upon a party to seek disqualifi-cation expeditiously when a perceived basis arises.
Public 22/
Section 2.704 requires that such a motion be made first before the judge to be disqualified.
21/
Judge Gesell aptly characterized the County's effort at disqualification as a delaying tactic.
l l
{ ;.
I Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
il f
ALAB-751, slip op. at 4-6 (Dec. 6, 1983).
SC's perceived basis i
must-date back to April 11 at the latest, given County Execu-
{
tive Cohalan's letter of that date to Chairman Palladino. :Such 4
an improper communication by the County with the Commission, j
however, is no substitute for a properly framed, filed and served motion for disqualification.
Perhaps the County plans j
to wait until the latest possible moment for filing such a mo-I tion in order to achieve maximum delay under the mandatory re-1 i
ferral procedure in S 2.704.
The Commission should preclude i
j any such tactic by ruling either that a disqualification motion-i j
is now barred by laches or by requiring the motion to be filed with the appropriate decisionmaker within five days,. decided on an expedited basis and similarly expedited on referral, if.that j
is required.
The Commission should explicitly preclude a stay i
j of further hearings incident to LILCO's low power motion' pend-ing resolution of any disqualification motion.
Second, disagreement with the pace of proceedings or l-comments of judges borne of frustration with the County's.dila-i j
tory tactics are not grounds for disqualification.
As the Com-i r.*ission clearly set forth in Houston Liahtina and Power Co.
(South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, i
1365 (1982):
I i
4
o.
i
)
" alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and re-sult in an opinion on the merits on some basis other than what the judge has learned from his participation in the case."
United States v.
Grinnell Corp., 384 U.S.
563, 583 (1966).
Indeed, the Commission has expressly adopted this rule, holding that " Preliminary assess-ments, made on the record, during the course of an adjudicatory proceeding -- based solely upon an application of the decision-maker's judgment to materi,al properly before him in the proceed-ing -- do not compel disqualification as a mat-ter of law" 15 NRC at 1365.
Again, the County has yet to reference any source of extrajudicial prejudice concerning the merits.
Nor
^
has the County attempted to describe any judicial conduct
" demonstrating such pervasive bias and prejudice as would con-stitute bias against a party."
15 NRC at 1366; see also Public Service Co. of New Hampshire, ALAB-751, slip op, at 3 (Dec. 6, 1983).
4 IV.
SCHEDULING A
l Whether the Commission agrees with the. Licensing Board's construction of GDC 17 or whether it finds that GDC 17's literal terms must be met even in the context of a S 50.57(c) motion, the scheduling issue will have to be engaged.-
In the former case, presumably some additional evidentiary hearings may be permitted on.the issues formulated by the Li-censing Board.
In the latter case, evidentiary hearings would be necessary to develop the factual issues posed by a i
o a
5 50.12(a) exemption request.21/
Thus, a full understanding of the schedule controversy is essential to an equitable conclu-sion.
The County has alleged that the time contemplated by
~
the Board's April 6 Order is inadequate to permit it to prepare 4
for litigation of' low power issues SC's complaint is. ground-i less.21/
It understates the time available to Suffolk County to gain knowledge concerning matters relative to this litiga-j tion, overstates the scope of the litigation and hence the breadth of matters to be inquired into, and ignores the Coun- -
~
ty's own dilatoriness in using its available time.
l Suffolk County attempts to depict the Board's Order of April 6 as providing the first indication that low power pro 4
i ceedings involving emergency power sources other than the TDI I
{
diesels would be conducted.
But the County was on explicit no-tice of LILCO's exact proposal as'of March 20, when it was served on the County.
That proposal was supported by four j'
24/
LILCO's March 20 motion should be considered by the'Com-mission as a request for exemption ~if thatLis deemed necessary to allow factual resolution'of'LILCO's proposal for low power testing.
15/
The April 25 temporary restraining order, though premised on assumed-inadequacies in the low power license' schedule, was issued without consideration of all pleadings-below.< And'the County voluntarily withdrew the. case prior to consideration of LILCO's and the NRC's motions to. dismiss and thus priorito con-sideration of the merits of'the case.
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detailed affidavits, with attachments, sponsored by LILCO's ex-perts.
Moreover, the County knew nearly a month earlier, as of the February 22 conference of the parties, that L1LCO would likely be filing proposals for low power operation using backup power sources in addition to the TDI diesels.
See, e.a. Tr.
21481-86, 21631-33.21/
Thus, the County had over two months' notice of the types of power sources upon which LILCO intended to rely.
And it had over a month to analyze LILCO's specific proposal for low power operation.22/
Further, the County has been on notice for years of the existence of virtually all of the factual issues it now por-trays as being newly created.
GDC 17 also applied to Shoreham in 1977-81, when the County was formulating its safety conten-tions.
GDC 17 applies to the capacity of offsite as well as onsite electric power systems to support the performance of specified safety functions in the event of postulated acci-dents.
That criterion specifically requires that:
i i
26/
Indeed, in a submittal filed on the Board and parties on February 7, 1984, LILCO urged the Licensing Board to consider the enhanced reliability of LILCO's offsite power system be-cause of the special features included in its design.
LILCO's submittal discussed many of the features that were later de-scribed in greater detail in its March 20 filing.
27/
LILCO's prefiled testimony differed only in form from its March 20 proposal.
The substance was essentially identical.
It follows, then, that the County's complaint about the limited l
time between the filing of testimony and the start of hearings l
is misleading.
l i
l s.
Provisions shall be included to minimize the probability of losing electric power from any i
t of the remaining supplies as a result of the loss of power from the onsite elec-l j
trical power supplies.
GDC 17, last paragraph.
Moreover, Shoreham's FSAR was required to show that each of the two required offsite power supply cir-cuits was designed to be available in sufficient time following a loss of all onsite alternatina current power supplies and the other offsite electric power circuit, to assure that specified acceptable fuel design limits and design conditions of the reactor coolant pressure boundary are not exceeded.
4 GDC 17, third paragraph (emphasis added).
Clearly, the 2
reliability of offsite power was a subject that should have been raised earlier in this proceeding if the County had any doubts about it.2E/
I In short, the same offsite power sources that Suffolk j
i County now wants to examine exhaustively were instrumental in 1
the safety analyses contained in Shoreham's FSAR and were available for litigation, if appropriately subject to concern, q
28/
If there is any doubt that the wording of GDC 17 should have prompted an earlier inquiry into the matters the County now vants to probe, the past prominence of the station blackout issue confirms that power reliability issues should have been raised earlier.
Station blackout was considered for Shoreham by the Advisory Committee on Reactor Safeguards.
Egg Advisory l
Committee on Reactor Safeguards Subcommit;ee Meeting, Sept. 30, 1981, Tr. 134-48.
Suffolk County representatives attended the Shoreham ACRS proceedings.
i 4
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i when Suffolk County was framing its safety contentions years ago.
The only recent development concerning the reliability of offsite power sources is their enhancement by the addition of two new power sources, a 20 MW gas turbine and four mobile die-sel generators physically located on the Shoreham site (though not deemed "onsite" for regulatory purposes).
Further, the scope of issues properly before the Li-censing Board is narrowly limited.
LILCO's motion for a low power license was filed pursuant to 10 CFR S 50.57(c).
Motions pursuant to this regulation do not provide an occasion for the litigation of new, unrelated contentions, or for the considera-tion of issues that either have, or should have, been previous-ly litigated.
See note 7 above.
A review of the County's i
l pleadings suggests that it wants time to conduct a much broader inquiry than is appropriate.22/
22/
The County's papers raise at least four issues that have no place in this litigation:
need for power, LILCO's financial qualifications, its technical qualifications, and security.
Need for power is definitionally not an issue in operating li-cense proceedings; it cannot be raised in the guise of a com-plaint about the pace of an OL proceeding.
Financial qualifi-cations, though potentially a subject on which the Staff must make a finding, have not been raised in any fashion that re-quires expansion of this proceeding.
LILCO's technical quali-fications are also a matter about which the County'has never filed contentions, despite its public discussion of these qual-ifications for years.
Security issues are governed generally by an extensive settlement agreement dated November 22, 1982 among LILCO, Suffolk County and the NRC Staff, which resolved all outstanding County security contentions and which governs (footnote cont'd)
I
I l
Moreover, as the Board observed, a low power license could probably be ruled upon without further evidentiary hearings 11/
upon affidavits and counteraffidavits.
11/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-81-5, 13 NRC 361 at 362 (1981).
Board Order of April 6, at 13.
Nevertheless, the Board ordered evidentiary hearings.
The County has deliberately chosen not to take advan-tage of its opportunity to participate fully in these hearings.
As outlined above, SC was aware of potential factual issues well before the Board's April 6 Order.
At the very latest, the County could have begun inquiring actively into LILCO's case on March 20, the day LILCO's motion and affidavits were served.
The County has often seized the opportunity for formal or in-formal discovery with alacrity in other aspects of this pro-ceeding; its refusal to do so here is telling.2E/
(footnote cont'd) the relations of the parties on security prospectively.
The County's later affidavits submitted to the United States District Court and to the Licensing Board, however, make no mention of these issues and it is assumed that they will be given no consideration in scheduling.
30/
The County did capitalize on one opportunity for early discovery during this period:
its representatives attended an open meeting, convened by the NRC Staff, on March 29 to discuss (footnote cont'd)
e j
Notwithstanding the County's contrary desires, the Board's intention to move quickly was signaled by its telephone notice of March 30 setting an April 4 oral argument, by its re-marks at the ensuing conference, and by its April 6 Order.
Still LILCO did not receive any discovery requests from the County until April 12.31/
Even at that, Suffolk County's dis-covery requests, though extraordinarily burdensome, were of the boilerplate type that could have been formulated on a first reading of LILCO's March 20 motion and affidavits.
In fact, the requests were very similar to the types of discovery that the County alleged it needed in its March 26 filing and reiter-ated at the April 4 argument.
The County's pursuit of document discovery actually re-quested has been equally superficial.
Following receipt of the County's first discovery request, LILCO had documents assembled for examination and copying on Long Island the next day, April 13, and offered to make them available around the clock.
The (footnote cont'd)
LILCO's low power motion.
In addition, LILCO provided the County with responses to NRC Staff inquiries concerning the Company's low power proposal.
Letters from LILCO to the NRC Staff. dated April 3 (SNRC-1033), April 6 (SNRC-1035), and April 11 (SNRC-1036)'
31/
One discovery request was dated April 11 but was not re-ceived until April 12 because it was sent by Federal Express rather than telecopier; the request dated April 12 was telecopied and received that evening.
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' )
County responded to the invitation by sending one lawyer re-cently assigned to the case and two paralegals; they spent be-tween three and four hours going through some of the available documents, requested extensive copying (which was performed overnight) and departed.12/
Further, despite having known since March 20 the identities of LILCO's potential witnesses and the gist of their proposed testimony, the County neither took nor requested depositions.22/
The County's pursuit of expert witnesses has been simi-larly lackadaisical.
Despite the clear indication as early as February 1984 that LILCO intended to propose alternatives relying in whole or in part on the enhanced reliability of LILCO's offsite power sources, the County took no steps to se-cure additional consultants.lA/
Indeed, even when LILCO made a 12/
Documents responsive to the second request were also as-sembled and made available for review on Long Island by April 14; the County forewent this opportunity, choosing instead to l
have the documents copied and sent to its attorneys' offices in Washington, D.C.,
which was accomplished by April 16.
In addi-tion, two SC paralegals reviewed documents on Long Island on April 16.
Governor Cuomo made no discovery requests and sent no one to review documents produced by LILCO.
11/
The County's diffidence about taking depositions here is in marked contrast to its conduct in other phases of the case, where the County, according to LILCO records, has taken deposi-tions of at least 51 experts and noticed (but not taken, for one reason or another) many more.
14/
As reflected in the Affidavits of Gregory C. Minor, the County has retained the services of MHB Technical Associates (footnote cont'd)-
. e specific proposal, supported by four affidavits including ex-hibits, the County made no effort to hire new consultants to engage the proposal.
It was not until after April 4 that the County began to move.
Minor Affidavit at 6.
The County claims it "did not retain experts prior to the Licensing Board's April 6 Order because the County's position was that for legal rea-sons, the LILCO Motion needed to be dismissed."
Id. at 7; Lanpher Affidavit at 1 10q.
In short, the Cottnty made a tacti-cal decision to rely on its legal arguments at the expense of developing a factual case.
If the gamble fails, as it should, the County should not be permitted to benefit from its own misjudgment.
Finally, it is also important to be aware that the Board allotted 11 hearing days for cross-examination by the parties, more hearing time than is spent on the entire litiga-tion of many NRC cases.
Again, the County failed to use its opportunities.
Hearings began at 9:00 a.m. on Tuesday, April 24, and by the time they were suspended at approximately 11:30 a.m. on Wednesday, April 25, all cross-examination of LILCO's witnesses had been completed.
If the County had valid safety (footnote cont'd) for a number of_ years.
Thus, the County had'immediate access to consultants it'has used on a wide range of subjects in the Shoreham proceeding.
The County also had previously retained the services of Dennis Eley.
l l
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concerns or thought the record needed further development, it could and should have put the available hearing time to far better use than it did.EE/
The inescapable conclusion is that the County's pro-fessed unpreparedness to proceed at this point is substantial-ly, if not entirely, of its own making.
The County has delib-erately chosen not to bestir itself.EE/
It was not deprived of an opportunty to be heard.
What, then, about further scheduling?
LILCO's motions for summary disposition, on Phases I and II, filed with these comments, are ripe for decision now.
Today's motions merely renew LILCO's March 20 filing and reiterate that no AC power is required to protect the public health and safety during these phases.
Indeed, the activities contemplated present no undue risk to the public.
None of the County's filings raise any controverted issue of fact before the Licensing Board with re-spect to these phases.
At the argument before the Licensing Board on April 4, LILCO repeatedly stated without contradiction 15/
The County did engage in limited cross-examination of LILCO's witnesses, using in some instances documents that had been obtained during discovery.
16/
One test for determining whether a curtailment of discov-ery is reversible error requires a showing that more diligent discovery was not possible.
Northern Indiana Public Service Co.,
ALAB-303, 2 NRC 858 (1975), citina Eli Lilly & Co. v.
Generix Druc Sales, Inc., 460 F.2d 1096, 1105 (5th Cir. 1972).
The County cannot meet this standard.
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1 a 0 that the facts and conclusions in its March 20 motion with re-spect to Phases I and II were uncontroverted.
- Egg, e.a.,
Tr.
47, 67; see also Tr. 76, 94 (Staff agrees with LILCO's views on I
Phases I and II).ll/
The license LILCO seeks with respect to Phase I is identical to the low power approval authorized by this Comission for Diablo Canyon in 1983.
As noted then:
The risk to public health and safety from fuel loading and pre-criticality testing is extremely low since no self-sustaining nuclear chain reaction will take place i
i under the terms of the license and there-l fore no radioactive fission products will i
be produced.
i 4
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-83-27, 18 NRC 1146, 1149 (1983).
Simi-larly, no fission products or decay heat will be generated dur-l ing precriticality operations at Shoreham.
Moreover, in such circumstances, the Commission has recognized there is no need for hearings because "there are no significant safety issues material to fuel loading and pre-criticality testing and there will be no prejudice to future Commission decisions.
Diablo Canyon, 18 NRC at 1149.
The Commission's analysis for-precriticality operations is also applicable to the activities 12/
Ultimately, the County stated its opposition to Phase I and II licensing, but offered no substantive explanation.
Tr.
1 85-86.
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1 i
i conducted during Phase II cold criticality testing because of the extremely low power levels achieved then and the short time i
criticality will be maintained. 'Thus, consistent with the l
precedent of giablo Canyon, the Commission should promptly grant LILCO's March 20 motion for Phases I and II', renewed in s
the ar.tached summary disposition papers, without further pro-ceedings.lE/
f Although LILCO believes that the Board's previous schedule was justified for consideration of Phases III and IV, it is clear that the schedule is now lost.
Th'us, the Company proposes the following adjustments to itt Hay 8 Begin supplementary discovery May 18 End discovery May 25 File supplementary testirony i
May 30 Resume hearings TheCommissionshould'makeclear,howevet,Jhat these adjustments are purely supplementary and do not signal a pro-cess begun all over.
Thus, document discovery should consist of narrowly focused requests for specific documents, not sweep-ing requests such as the type the County has al' ready' flied.
18/
If the contmission permits written responses to LILCO's Phase I and Phase !! summary disposition motionr,, such re-sponses should be filed in short order, given that: County has had LILCO's March 20 motion for: almost seven weeks.
Nothing in the County's papers suggests that any of its consultants will perform work pertinent to Phases I and.!I.
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d
[ Depositions should only be permitted if the County identifies precisely what information it seeks and can demonstrate that it would have been impossible to seek that information during prior discovery or during the hearings already conducted.
Dis-covery should be limited to the precise issues in controversy and to genuinely new matters.
Finally, additional hearings should focus on matters that could not have been covered in prior evidentiary sessions.
Thus, since cross-examination of LILCO's witnesses has been completed, a strong showing should be required as to why new cross-examination could not have been pursued earlier.
V.
CONCLUSION In sum, LILCO requests that the Commission:
(a) resolve the County's murky attempts to raise dis-qualification issues by finding them too late or, in the alternative, ordering that they be properly presented, if at all, within one week and handled expeditiously by the pertinent adjudicators; (b) promptly grant LILCO's motions for summary disposi-tion of Phase I and Phase II low power operation; i
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4 t
(c) set further proceedings for Phases III and IV as proposed [above; and (d) generally engage shat remains of the Shoreham case in a systematic and expedited' fashion.
f,
?
Respectfully submitted, LONG ISLAND LIGHTING COMPANY 2r N
'W. fayldf Reveley, II[ ' f /'
Robert R. Rolfe 4/
Anthony F.
Earley, Jr.
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED:
May 4, 1984 1
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