ML20094J822
| ML20094J822 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/13/1984 |
| From: | Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20094J828 | List: |
| References | |
| OL-4, NUDOCS 8408140470 | |
| Download: ML20094J822 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ED Before-the Commission N
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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)
(Shoreham Nuclear Power Station,
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Unit 1)
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SUFFOLK COUNTY AND NEW YORK STATE OPPOSITION TO LILCO'S MOTION FOR DIRECTED CERTIFICATION OF THE
. LICENSING BOARD'S JULY 24, 1984 ORDER GRANTING IN PART AND DENYING IN PART LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION OF PHASE I AND PHASE II LOW POWER TESTING On August 2, 1984, LILCO filed with the Commission a Motion for Directed Certification of the Licensing Board's July 24 Order which granted in part and denied in part LILCO's motions for sum-mary disposition of Phases I and II of LILCO's low power license request.
For the reasons discussed below, the County and State submit that the Commission should deny LILCO's Motion.
In essence, LILCO's Motion for Directed Certification is an attempt to reargue for the third time the exemption issue which LILCO has already argued -- and lost -- first before the Commis-sion, and then before the Licensing Board, as evidenced by the July 24 Order.
Phase I and Phase II represent the first two l
stages of LILCO's proposed four stage low power testing program, l
which is the subject of LILCO's application for a low power opera-ting license.
The Commission has already ruled in its May 16, l
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- -1984 Order (CLI-84-8)' that because Shoreham admittedly does not
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have a qualified source of onsite emergency power, LILCO must demonstrate its entitlement to an exemption from GDC 17 and other applicable regulations before it may obtain a low power license.
In requesting summary disposition with respect to the first half of its low power test program, without even addressing the deter-minations which the Commission ruled must be made,in order to obtain an exemption under 10 CFR 50.12(a), LILCO simply ignores the Commission's May 16 Order.
Thus, the Licensing Board was correct in stating in the July 24 Order that in light of the Commission's May 16 Order the Board "does not have the power or jurisdiction to grant LILCO's motion for summary disposition of Phases I and II of its low power testing program" because:
In its motion LILCO did not seek summary disposi-tion of.its exemption request,' nor did it even address the factual isues involved thereIn.
Accor-dingly, the ultimate issues involved in Phase I and II activities cannot be disposed of summarily, and that portion of the summary disposition motion is denied.
July 24 Order at 9, 10 (emphasis added).
I addition, following the rejection by the Commission and the Licensing Board of the request made in LILCO's Motion for Directed Certification, the Licensing Board convened -- and has since completed -- an evidentiary hearing on the non-security aspects of LILCO's exemption request.
There is, therefore, no basis for the Commission now to inject itself into the resolution of the very legal and factual issues on which the Commission in-structed the Licensing Board to hold hearings and on which hear-ings have already been held.
The proper posture at this time is
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for the Commission to await the Licensing Board's findings and initial' decision on LILCO's exemption request, and then to exer-cise the review function which the Commission established.in its May 16 Order.
The Commission's May 16 Order Is Clear Contrary to LILCO's assertion that the Commission's May 16 Order is ambiguous (see Motion for Directed Certification at'5-6),
the Order is clear on its face, and its meaning was applied in the Licensing Eoard's July 24 Order.
Indeed, there can be no doubt that the Commission's May 16 Order requires thab bILCO must first
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obtain an exemption from applicable General Design Criteria, in-cluding expressly GDC 17, before its low power operation proposal, or the first half of it, may be granted.
First, the Comm:sssion's May 16 Order, in the Commission's words, was:
4 On-the applicability of the General Design Criteria (particularly GDC 17) to the proposal of the Lory Island Lighting Company-(applicant) to[ operate the Shoreham facility at low power.
May 16 Commission order at 1 (eniphasis added).
The LILCO " pro-posal" with which the Order dealt was that contained in LILCO's Supplemental Motion for Low Power Operating License, dated March 22,_1984, which, in turn, included a description of the four phase
" low power testing program" which is also the subject of LILCO's May 22 Application for Exemption.
Thus, the LILCO proposal which was the subject of the May 16 Commission Order included Phase I and Phase II, which in turn were, and still are, the subject of 1
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- LILCO'd-summary disposition' motions.
Accordingly, the rulings a
- M contained ~in,that Order necessarily applied to Phases-I and II.
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Second,lthe Commission stated that its May 16 Order was based upcn "the, oral arguments and written submissions of the parties."
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t' May 16' Order'at 1.
.LILCO filed:with the Commission the following V
" written submissions" relating to its Low Power Motion:
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,, 1.
LILCO's Respohse-to various Suffolk County /New York State Requests Dated ' Api-il 1,6 and Received April 17, 1984, dated' April 19, 1984.
2.
LILCO's Comments in~ Response to the Commission's Order of April 30th, dated May 4,-1984.
3.
,LILCO's Motion for Summary Disposition on Phase I Low Fover Testing,' dated May 4, 1984.
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Motion for Summary Disposition on Phase II Low Power Testing, dated May 4, 1984.
5.
Letter to Chairman Palladino from Anthony F. Earley, Jr., dated May 4, 1984, with copies to the other Commission-ers.,
With,th'e exception of Itemj5, every one of LILCO's written submis-
'sions-to the Commission explicitly discussed Phase I a d Phase II n
as integral parts.of LILCO's low power motion.
- See, e.g.,
April 19 submission at?l0; May 4 " Comments" at 26-27, 33-36; both of the May 4 Summary Disposition Motions in toto.
Similarly, during the May 7 oral argument before the Commis-sion, LILCO's counsel discussed Phase I and Phase II at consider-able length.in arguing that no exemption from GDC was required
. prior to the issuance of a low power license to perform Phase I i
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and Phase II activities.
For example, the following statements were made to the Commission by LILCO's counsel:
GDC-17.' states that the AC power systems that are available, have to provide sufficient capacity and capability to assure that the g
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specified acceptable fuel design limits and-
- design conditions of the reactor-coolant pres-sure. boundary are not exceeded,Las a result of the anticipated operational occurrences, and
.two,'that the-core is. cool and that the con-tainment integrity and other vital functions are maintained-in the event of postulated accidents.
LILCO has that capacity and its proof has shown that, indeed,-for Phases 1 and 2, no such capacity is even needed in this case because no AC power is required to. ensure the public health and. safety.
But for all the phases, Phases 1, 2,
3, and-4, of the low power program that LILCO outlines in its sup-plemental motion, for all-those phases LILCO will; prove, and indeed has proved in the hear-ings, that it has the capacity to provide these assurances.
(Rolfe, Tr. 9-10.)
We meet [GDC 17] in light of its application to [a] low power license.
We do not have an onsite power system strictly speaking.
How-ever, in order to apply GDC-17 at this level of operation,-you have to take into considera-tion the meaning of 50.57(c).
And what LILCO says is that in interpreting the regulation for low power licensing, one ought to look at the level of operation intended and interpret the regulation, the General Design Criterion, accordingly.
We meet it, sir, in that the functions pre-scribed in GDC-17, the safety functions listed there, are met.
(Rolfe, Tr. 15.)
LILCO demonstrates that in Phases 1 and 2~you don't need any AC power and in Phases 3 and 4 that there is sufficient AC power aveil-able and that it can be restored well within the time parameters for the limiting event and the Loss Of Coolant Accident.
And that's the method in which LILCO approaches that and provides the technical justification to show that the public protection will be equivalent to or greater than that [at] full power opera-tion.
(Rolfe, Tr. 22.)
[F]or Phases 1 and 2 there is no risk to pub-lic health and safety because there is no need for AC power And for those reasons, LILCO asks that the Commission rule now and grant its' motions for summary disposition for
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- - i-Phases 1 and 2.
(Rolfe, Tr. 24; emphasis
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added.)-
.[offsite emergency planning is]'not an impor-tant ingredient here because the level of protection afforded by LILCO during this oper-ation-at five percent power is equivalent to
.what you would have in a plant that did have onsite diesels.
And let me hasten to add that again, this is only an important issue for Phases 3 and 4 because in Phases 1 and 2 you don't~need any AC power.-
(Rolfe, Tr. 32.)
We've been after those four. phases from the beginning.. And we pointed out, from the ba-ginning,.that Phase 1 ain't-Phase ~4, in ef-fect.
It's a pale shadow of-Phase 4.
So we are, in fact, interested in all four phases.
We would like-to get the ones-that can be gotten quickly as quickly as we can get them, but [what] we are suggesting in the papers that we filed with you on the 30th is the following:
that as to Phases 1 and 2, we proceed by summary disposition.
If.the sum-mary disposition _is granted, then there's no need for further hearings.
If it's not granted, then obviously whatever remains must go to' hearing.
Commissioner, we are very interested in get-ting Phase 1, even, if that's all we can get, soon.
But you have pending before you, sum-mary disposition papers on Phases 1 and 2 We hope you all will act on them, but as to the first two phases we strongly believe they can be resolved by affidavit.
And if they can't be wholly resolved by affidavit, we believe that process ought to focus what the remaining issues are and thel, then, can go back for evidentiary hearings.
So yes, we want all four phases, and we think that the lower numbered phases should be eas~
ier to obtain, given the facts then the higher numbered phases We are asking that the four phases be looked at separately, if that's necessary.
(Reveley Tr. 47-49.)
E The Commission rejected LILCO's' express arguments that no.
exemption-from GDC 17 was necessary for Phases I or II of its low power testing proposal.
It stated:-
After reviewing the oral-arguments and written submissions 1of the parties, the Commission has determined that 10 C.F.R. 50.57(c) should not be read to make General Design Criteria inapplicable to low-power operation.
'May 16 Order at 1.
The Commission stated further:
[T]he applicant made clear at_the May 7 oral argu-ment its intent to seek an exemption under 10 C.F.R. 50.12(a).
If it intends to follow that course, the applicant should modify its application to sddress the-determinations to be made under 10 CF.R. 50.12(a).
May 16 orderz at 2 (emphasis added).
The " application" referenced by the Commission necessarily meant the items submitted by LILCO for the Commission's-consideration -- that is, LILCO's Supplemen-tal Motion for Low Power Operating License, and LILCO's summary disposition motions on Phase I and Phase II.
Thus, the Commission's rulings that GDC 17 is applicable to LILCO's low power proposal, and that LILCO must address in a modi-fied application for a low power license the determinations which must be made in granting an exemption from regulatory requirements under 10 C.F.R. 6 50.12, covered Phase I and Phase II of LILCO's proposal.
The Commission did not indicate any intent to limit its rui-ing on the requirement for an exemption to only portions of LILCO's low power license application.
Indeed, LILCO had ex-pressly requested the Commission to rule that it could obtain a license for Phase I and Phase II activities without having first i
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i.obtained an exemption by having su m tted to the Commission its bi motions for summary disposition on Phase I and Phase II, and by its counsel's statements during oral argument cited above.
How-ever, the Commission'did not grant LILCO's summary disposition motions, and did not limit or restrict the applicability of its May 16 ruling on LILCO's need for an exemption to only portions of the proposed low power test program which is the subject of LILCO's requested low power license.
Thus, the Commission's May 16 Order.is clear in requiring-LILCO to seek a Section 50.12 exemption from the requirements of
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GDC 17, and the Licensing Board properly read the Commission's Order in its July 24 Order denying summary disposition with re-spect to the portion of LILCO's low power-license application represented by Phases I and II.
Furthermore, as noted above, pursuant to the Commission's May 16 Order, the Licensing Board has already conducted an eviden-tiary hearing on the non-security aspects of LILCO's Application for Exemption.1/
Thus, no useful purpose would be served if the Commission now were to direct certification concerning summary disposition of a portion of the exemption issue, since the legal issue has already been ruled on by both the Commission and the Licensing Board, and the factual issues have been heard by the Board'in evidentiary hearings.
Accordingly, Suffolk County and i
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Closing arguments have not yet taken place but have been scheduled by the Licensing Board.
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. i New York State submit that LILCO's request for directed certifica-tion should be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 1/
Herbdrt H. Brown /U Karla J. Letschd KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Suffolk County 2222 Fabian G.
Palomino
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Special Counsel to the Governor of New York State Executive Chamber, Roon 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo Governor of the State of New York Dated:
August 13, 1984
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