ML20097D021
| ML20097D021 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/14/1984 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20097C992 | List: |
| References | |
| OL-4, NUDOCS 8409170347 | |
| Download: ML20097D021 (27) | |
Text
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CCCXETED
'J3 M C Attachment to County State September 14, *Pl*98:4 WF'ilitid :C3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission c
)
3 In the Matter 'of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
)
SUFFOLK COUNTY AND STATE OF NEW YORK STATEMENT OF ADDITIONAL VIEWS AS TO WHY THE SEPTEMBER 5, 1984 ASLB ORDER MAY NOT SERVE AS A BASIS FOR ISSUANCE TO LILCO OF A PHASE I AND II LICENSE In this Statement, Suffolk County and tne State of New York set forth their additional views as to why the Licensing Board's September 5 Order may not serve as a basis for issuance to LILCO of a Phase I and II license and wny such a license may not, in any event, be issued here.
I.
Introduction LILCO, by its Phase I and II license requests, is asking the Commission:
f 8409170347 840914 PDR ADOCK 05000322 O
6 To take. action which is beyond the au-thority of the NRC.
(The NRC is au-thorized to issue only construction permits and operating licenses; a low power license is an operating licence.
LILCO, however, is requesting an impermissible fragment of a license:
a no power _ license.)
To take action which contradicts the May 16 Order of the Commission.
(The Commission ruled that LILCO cannot be eligible to attempt to show that it is entitled to a license unless it first qualifies for an exemption from GDC 17 and other applicable regulations.
LILCO has not done so yet, and, the County and State submit, it will not be able to do so even after the pend-ing low power litigation.)
l It is'important to place'LILCO's Phase I and II Summary l
l l
Disposition Motions in the context of what has occurred in this l
proceeding since January, 1984, when it became clear that the defective TDI diesels would bar the issuance of a low power li-cense for Shoreham.
From that time through the present, LILCO has submitted low power proposals which conflict with or misin-terpret th'e NRC's. regulations.
The reasons for such LILCO pro-posals are well-documented:
LILCO has been in severe financial trouble because of its inordinate cost overruns at-Shoreham; credit markets have been closed to the company; and LILCO looks L
upon an NRC license -- an official-looking paper seemingly of any kind and for any purpose -- as a key to reopening those _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _.
6 a-credit markets.
For the moment, therefore, the device which LILCO has fashioned to serve its financial purpose is a "no power" license, which it has named a Phase I and II license.
.Nowhere in the Commission's regulations or in the Atomic Energy Act can one find any reference to such a license.
Stripped of the trappin'gs of legitimacy with which LILCO has attempted to adorn this type of " license," however, the "no power" license is nothing more than a gimmick with which LILCO is trying to achieve its avowed purpose of having a " signal" sent by Washington to Wall Street.
There is no basis in law or fact for such a gimmick, and the Commission should say so.
In essence, LILCO's Phase I and II license request is an invitation for the Commission to commit legal error.
The Li-censing Board was instructed on May 16 to follow the rules.
It has not done so but, instead, has accepted LILCO's invitation to commit error.
The proper course for the Commission now is to vacate the Board's September 5 Order and to apply the Com-mission's May 16 Order and the NRC's Regulations to LILCO's proposal.
Those regulations contemplate the Commission consid-ering only bona fide operating licenses for either full power or low power.
They do not contemplate "no power" licenses or f
any other gimmick which LILCO creates out of thin air to satis-l fy its momentary urgings.
t '
1 LILCO is clearly not entitled to a bona fide low power li-I cense by means of summary disposition.
What LILCO has done, thereIore, is to fragment the low power licensing process into the smallest possible piece with which LILCO can argue it complies -,thus, come the Phase I and II~ fragments of LILCO's self-styled license.
This is merely a tactic of LILCO -- a satire of the Atomic Energy Act and the NRC's regulations.
The County and State therefore request that the Commission reject LILCO's effort to secure a Phase I and II license.
II.
The Commission Has No Authority to Issue the License Requested by LILCO in its Phase I_and II Motions In its request for issuance of a license for Phase I, LILCO states that during " Phase I" it intends to load fuel into the reactor, and to perform various procedures, involving the.
loaded fuel, described as " core verification."
Phase I Motion at 2.
According to LILCO, during Phase I "the reactor will not be taken critical."
Statement of Material Facts attached to Phase I Motion, para. 5.
Indeed, throughout Phase I, the pres-sure. vessel'will be uncovered.
Thus, if all goes according to plan during Phase I, nc power would or could be generated by the reactor. - _ _. _.
.It is clear that none of the activities contemplated dur-ing Phase I can be said to constitute " operation" of the Shoreham reactor.
Although fuel will be loaded into the core and certain manipulations performed, and although during and fol' lowing' Phase I the reactor will be closer to being ready for future operation, the Phase I license which LILCO seeks is a "no power" license that is nowhere authorized or contemplated in the NRC's regulations or the Atomic Energy Act.
Similarly, the so-called Phase II license is also not an operating li-cense, since in Phase II LILCO proposes only to perform cold criticality testing, a step which again only brings the reactor closer to being ready for future operation.
Accordingly, the Commission has no authority to issue the license that is re-quested by LILCO for Phases I and II and thuse the Board's Order recommending a Phase I and II license must be summarily rejected.
In the County / State June 13 filing opposing low power operation, the lack of authority for issuance of a "no power" license was thoroughly discussed.
However, the Licensing Board has never even aluded to the issue in any of its orders, much less confronted the County / State arguments.
Since the Board has recommended approval of a Phase I/II license, it effec-
.tively has. rejected the County Stata posi tion.
However, under
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settled NRC law, the Board was required.to explain why it was rejecting our position..See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33,40-42 (1977).
The Board unquestionably violated this long standing rule, as well as the NRC's directive in CLI-84-8 to conduct the proceeding.in accordance with the NRC's rules.
This alone is sufficient basis to vacate the September 5 Order.
The Atomic Energy Act contemplates the issuance of only construction permits and operating licenses for nuclear reac-tors.
There -is no authorization in that Act for the issuance of a license to laod fuel, or to manipulate a loaded core, as an'end in itself without operating the reactor.
See 42 USC S 2133 (authorization to issue commercial licenses pursuant to S 2131 et seg.); 5 2232 (requirements of license applications for "a construction permit or an operating license"); and S 2235 4
(granting of construction permits, and granting of a license "upon finding that the facility authorized has been constructed and will operate").
And, the legislative history of the Act
. provides no indication that any such non-operating license was contemplated, intended, or authorized by the statute.
What LILCO is requesting, therefore, has no foundation in the Atomic Energy Act. _
Similarly, the Commission's regulations, which implement the Atomic Energy Act, authorize the issuance of only construc-tion permits and operating licenses with respect to nuclear power. plants.
- See, e.g.,
10 CFR SS 50.23, 50.30, 50.57.
The regulations do not even mention -- let alone authorize -- the issuance of a license to a holder of a construction permit for
~
the purpose of using but not operating a commercial power reac-
. tor.
To the contrary, the regulations clearly contemplate only two types of licensing:
the issuance of a construction permit and the issuance of an operatinq license.
- See, e.g.,
10 CFR S 50.33 on contents of applications (references only construction permits and operating licenses), and 10 CFR $ 50.51 on duration and renewals of licenses ("Where the operation of a facility is
. involved
[and] Where construction of a facility is in-volved
").
For example, 10 CFR S 50.55(d) provides:
At or about the time of completion of the construction or modification of the facili-ty, the applicant will file any additional information needed to bring the original application for license up to date, and will file an application for an operating license or an amendment to an application for a license to construct and operate the i
facility for the issuance of an operating license, as appropriate
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(emphasis added).
Similarly, Section 50.56 states in pertinent part:
Upon completion of the construction or.al-teration of a facility, in compliance with the terms and conditions of the construc-tion permit
. the Commission will issue a license of the class for which the construction permit was issued.
and Section 50.57 follows with:
Pursuant to S 50.56, an operating license may be issued by.the Commission.
. upon finding that:
-(l)
Construction of the facility has been
'.and substantially completed (2)
The facility will' operate (emphasis added).
The fact that Section 50.57.provides for both low power and full power licenses does not change the lim-itation of authority, set forth in that section, to the issu-ance of only licenses for operation.
Clearly, if the NRC had been authorized by Congress to es-tablish an interim "no operation" or "no power" stage in the licensing process between construction completion and low power operation, the Commission could have done so in its regula-tions.. Pursuant to its authority under the Atomic Energy Act, the Commission has created'in its regulations an elaborate G
scheme of specific licenses for particularized activities, such as licenses concerning by-products, 10 CFR Parts 30-33 and 35, licen'ses concerning radiographic operations, 10 CFR Part 34, licenses concerning source materials, 10 CFR Part 40, licenses respecting the packaging of radioactive materials for trans-port, _10 CFR Par t 71, and licenses concerning the storage of spent fuel in independent spent fuel facilities, 10 CFR Part 72.
The fact that this extensive licensing scheme does not in-clude provision for a license limited to loading fuel and the other no power activities included in LILCO's proposed Phases I and II is further evidence of the Commission's lack of authori-ty to issue such a-license.
LILCO has cited two alleged " precedents" for its no power license request.
First, LILCO persists in relying on the Com-mission's Diablo Canyon decision.
See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-83-87, 18 NRC 1146 (1983).
Diablo Canyon is completely distinguishable:
the Commission had already granted an operating license; the operating license had been suspended; and the Commission ordered a staged reinstatement of the li-cense in the context of an enf,orcement proceeding.., t s.t u
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See Virginia _ Electric and Power Co. (North Anna Power' Station, Units 1 and 2), LBP-77-64, 6 NRC 808 (1977).
The County and State submit that that decision constitutes no precedent here.
No party contested, and no portion of the Board's opinion concerns, whether a "no power" license is legal under the Atomic Energy Act or the NRC's regulations.
- Thus, the issue raised herein is one of first impression.
The County and State note, however, that even in a "no power" situatica, the North Anna Board required full implementation of all as-pects of the physical security plan.
See 6 NRC at 813.
In the instant case, LILCO does not comply with security requirements and the Licensing Board, pursuant to the NRC's Orders of July 18 and August 20, is now proceeding to consider the security issues.
Finally, the Licensing Board's September 5 Order relies upon the Staff's action in letting Duke Power load fuel and conduct pre-criticality testing at Catawba.
Order, p. 10.
Our understanding is that at Catawba the intervenors agreed to such a license and there was no adjudication of the issue.
- Thus, again thl'_ sas not a contested c.s ahere the no power license issue was squarely confront-d 1 >
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-It is well established that an agency cannot act beyond the authority delegated to it in-its enabling legislation.
It is also_beyond dispute that an agency must act in accordance with its own. regulations.
See 2_ Davis, Administrative Law Treatise 98 ff S 7:21 (2d ed. 1979).
It is clear that the NRC is not authorized to issue a license that involves neither con-
~ struction nor operation of a nuclear power plant.
Accordingly, the Commission does not have the authority to issue the Phase I and II license requested by LILCO.
III. No License Can Be Issued Without the Prior Grant of an Exemption for LILCO's Non-Compliance with GDC 17 and Other Regulations LILCO's license request is premised on LILCO's assertion that onsite AC power is not necessary for the activities in-volved in Phases I and II.
Building on this assertion, LILCO argues further that no exemption is required under Section 50.12(a) for LILCO's proposed Phase I and Phase II license.
Although LILCO argues that its Phase I and Phase II pro-posal satisfies the requirements of GDC 17, even assuming there is no operable onsite AC power source, LILCO has recognized that that argument flies in the face of the Commission't May 16 Order.
Thus, LILCO stated in its Phase I summary disposition motion: -
If the Licensing Board believes the Commis-sion's May 16 Order requires an exemption from the regulations for all four phases of low power testing, then the Board should treat this motion as a motion for summary disposition of all health and safety issues with respect to Phase I.
Phase I Motion at 5, note 1.
An identical statement, with
" Phase II" substituted for " Phase I" is in footnote 2 of the Phase II Motion.
On July 24, the Licensing Board held unequiv-ocally that an exemption was required, thus rejecting LILCO's argument and accepting the positions of the NRC Staff, the State of New York, and Suffolk County.
On September 5, the Board reversed itself.
This reversal was clear error.
A.
The Commission's May 16 Order Requires an Exemption for Phases I and II There can be no doubt that the Commission's May 16 Order requires that LILCO must first obtain an exemption from GDC 17 and other applicable regulations before its low power operation proposal, or any portion thereof -- including LILCO's self-styled Phase I and II -- could be granted.
First, the Coc.aission's May 16 Order, in the Commission's words, was:,
on the applicability of the General Design Criteria (particularly GDC 17) to the proposal of the Long Island Lighting Company (applicant) to operate the Shoreham facility at low power.
CLI-84-8 at 1 (emphasis added).
The LILCO " proposal" with which the Order dealt was that contained in LILCO's Supplemen-tal 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 Phases I and II.
Accordingly, the rulings contained in the Commission's Order are applicable to Phases I and II.
Second, the Commission's May 16 Order was based upon "the oral arguments and writte" submissions of the parties."
CLI-84-8 at 1.
LILCO filed with the Commission the following
" written submissions" relating to its Low Power Motion:
1.
LILCO's Response to various Suffolk County /New York State Requests Dated April 16 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;
. s
3.
LILCO's Motion for Summary Disposition on Phase I Low
-Power Testing, dated May 4, 1984; 4.
Motion for/ Summary Disposition on Phase II Low Power Testing, dated May 4, 1984; and
'5.
Letter to Chairman Palladino from Anthony F.
- Earley, Jr., dated May 9, 1984, with copies to the other Commissioners..
With the exception of Item 5, every one of LILCO's written sub-missions to the Commission explicitly discussed Phase I and Phase II as integral parts of LILCO's low power motion.
- See, e.g.,. April 19 submission at 10; 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 Com-mission, LILCO's counsel discussed Phases I and II at consider-able length in arguing that no exemption from GDC 17 was required prior to the issuance of a low power license to per-form Phase I and Phase II activities.
For example, the follow-
-ing statements were made to the Commission by LILCO's counsel:
i I --
GDC-17 states that the AC power sys-tems that are available, have to provide sufficient capacity and capability to as-sure that the specified acceptable fuel de-l sign limits and design conditions of the reactor coolant pressure boundary are not exceeded, as a result of the anticipated operational' occurrences, and two,~that the l
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1 core is cool and that the containment integrity and other vital functions are maintained in the event of postulated acci-dents.
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 en-sure 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 supplemental motion, for all those phases LILCO will prove, and indeed has proved in the hearings, that it has the ca-pacity to provide these assurances.
(Rolfe, Tr. 9-10).
We meet [GDC 17] in light of its ap-plication to a low power license.
We do not have an onsite power system strictly speaking.
However, in order to apply GDC-17 at this level of operation, you have to take into consideration 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 prescribed 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 suffi-cient AC power available and it can be re-stored 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 operation.
(Rolfe, Tr. 22). l
[F]or Phases 1 and 2 there is no risk to public 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 Phases 1 and 2.
(Rolfe, Tr. 24; emphasis added).
[Offsite1 emergency planning is] not an important ingredient here.because the level of protection afforded by LILCO during this operation at five percent power is equiva-
-lent 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-impor-tant 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 beginning, that Phase 1 ain' t Phase 4, in effect.
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 guickly as quickly as we can get them, but [what] we are suggesting in the papers that we filed with you on the-30ch is the following:
that as to Phases 1 and 2, we proceed by summary disposition.
If the summary disposition is granted, then there's no need for further hearings.
If it's not granted, then obvi-ously whatever remains must go to hearing.
Commissioner, we are very interested in getting Phase 1, even, if that's all we can get, soon.
But you have pending before you, summary 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 re-solved by affidavit, we believe that pro-cess ought to focus what the remaining is-sues are and they, then, can go back for evidentiary bearings. l
.So yes. we want all four phases,-and we think that the lower numbered phases should be easier to obtain, given the facts than'the higher numbered phases.
We are asking that the four phases be looked at separately, if'that's necessary.
(Reveley Tr. 47-49).
The. Commission rejected LILCO's express arguments that no exemption from GDC 17 was necessary for Phases I or II of its low power proposal.
It stated:
After reviewing the oral arguments and written submissions of 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 cperation.
CLI-84-8 at 1.
The Commission stated further:
(T]he~ applicant made clear at the May 7 oral argument its intent to seek an exemp-tion under.10 C.F.R. 50.12(a).
If it in-tends to follow.that course, the applicant should modify its application to address the determinations to be made_under_1_0_
C.F.R.
50.12 ( a )_.
Id. 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 Supplemental Motion for Low Power Operating License, and LILCO's summary disposition' motions on Phases I and II.. -
Thus, the Commission's rulings that GDC 17 is applicable to LILCO's low power proposal and that LILCO must address in a modified application for a low power license the determinations which must be made in granting an exemption from regulatory re-quirements under 10 C.F.R.
S 50.12, are applicable to Phase I and Phase II of LILCO's proposal.
If the Commission had intended to limit its ruling on the requirement for an exemption to only portions of LILCO's low power license application, it certainly would have said so.
Indeed, LILCO had expressly requested the Commission to rule that it could obtain a license for Phase I_and II activities without having first obtained an exemption by having submitted to the Commission its motions for summary disposition on Phase I and Phase II,_and~_by its_ counsel's statements _during oral argument c'ited above.
However, the Commission did not grant LILCO's summary disposition motions, and did not in any way limit or restrict the applicability of its May 16 ruling on LILCO's need for an exemption in order to obtain its requested low power license.
That is the unmistakable law of this case.
In short, therefore, an exemption from GDC 17 and other appli-cable regulations must be obtained by LILCO before any license may be issued.
l _ _ _ _ - _ _ _ _ _ _ _ _ - _ _
B.
LILCO's Argument that Onsite AC Power is not Required by the Commission's Regulations for Phases I and II is Contrary to the Commission's May 16 Order and is Without Basis, the Board's Acceptance of LILCO's Argument Contradicts the May 16 Order In its motions, LILCO has argued that obtaining an exemp-tion from GDC 17 is not a prerequisite to the issuance of LILCO's self-styled licenses for Phases I and II.
Thus, LILCO has asserted that summary disposition is proper on Phases I and II because "the reliability of LILCO's onsite diesel generators is not material" to either of those phases since, according to LILCO, "there is no need for any AC power" during those phases.
LILCO uses this logic to conclude that the requirements of GDC 17 would be met during Phases I and II, even assuming LILCO's onsite diesel generators do not operate.
See Phase I Motion at 4,
5: Phase II motion at 3, 6.
The identical argument was made by LILCO in its May 4 Com-ments submitted to the Commission.
Thus, in that pleading, LILCO asserted as follows:
For low power testing however, such an "onsite" qualified power soarce is not necessary to satisfy GDC 17.
(at p.
25)
[For Proposed Phases I (fuel load and pre-criticality testing) and II (cold criticality testing) at Shoreham, the evidence before the Commission demon-strates that no AC power is needed to - - - _ _ - _ _ _ _ _
achieve compliance with GDC 17.
That criterion requires only that an onsite electric power system and an offsite system " provide sufficient capacity and capability" to achieve the specified goals.
With respect to Phases I and II, the " sufficient ca-pacity" is zero.
Hence, no onsite AC power source is necessary to meet the criterion's requirements.
(at pp.
26-27)
The technical justifications for operation of Shoreham during [ Phase I]
is set out in more detail in LILCO's motion for summary disposition con-cerning Phase I activities, filed with these comments.
In summary.
no AC power, either onsite or offsite, is reguired to protect the public health and safety during this phase.
(at p.
35)
Again, detailed justification for per-mitting operation of Shoreham during Phase II is contained in LILCO's mo-tion for summary disposition concern-ing 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.
(at p. 35)
See also citations from transcript of oral argument set forth above.
These LILCO arguments were considered and rejected by the Commission.
By accepting those arguments in its September 5 Order, the Board ruled contrary to the very decision of the 20 -
A Commission that rejected those arguments.
The Board, therefore, contradicted, if not repudiated, the Commission's ruling that the GDC 17 requirement of an onsite AC power source is applicable to all phases of LILCO's proposed low power pro-posal, and that LILCO must modify its low power license appli-cation to include a request for an exemption from compliance 1
with GDC 17 and other pertinent regulations.
Furthermore, LILCO's argument that the requirements of GDC 17 would be met during its proposed Phase I and Phase II ig-notes the plain language of that criterion.
The first sentence of GDC 17 states:
I' An onsite electric _ power system and an offsite electric power system shall be provided i
I (emphasis added).
The LILCO motions are premised on the as-sumption that there is no operable onsite power system at Shoreham.
All LILCO's arguments about its supposed "compli-ance" with GDC 17 constitute a challenge to GDC 17, since they amount to nothing but a rehash of LILCO's view that despite the plain.words of GDC 17, an onsite electric source does not have
' to be provided in order to obtain a license.
21 -
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)
a C.
LILCO Also Has Failed to Comply With Regulations Other Than GDC 17_.
LILCO's Phase I and II Motions are premised upon the unavailavility of the TDI diesel generators and the absence of any operable onsite AC power system.
In its March 20, 1984 Supplemental Motion for Low Power Operating License, LILCO de-scribed a proposed alternate AC power configuration involving a s
gas turbine and mobile diesel generators. As recognized by the Commission in its May 16 Order, and reflected in LILCO's Appli-cation for Exemption, the-Shoreham plant configuration postu-lated by LILCO for its proposed " low power" operation (including its Phases I and II activities) differs substantial-ly from the configuration mandated by the regulations. 'Thus, in its Application for Exemption, LILCO states that it seeks an exemption under S 50.12(a) from that portion of General Design Criterion 17, and from other_ applicable regulations, if any, requiring that the TDI diesel gen-erators be fully adjudicated prior to conducting the low power testing described in LILCO's March 20 Motion.
s Application for Exemption at 4 (emphasis added).
LILCO thus appears to acknowledge that its proposal to operate Shoreham with its unique electric power configuration rather than that required by the regulations and identified in the Shoreham >
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FSAR, requires an examination of that configuration's compliance with " applicable regulations" in addition to GDC 17.
Although LILCO fails to identify the "other applicable regula-tions" from which it needs and seeks an exemption, the state of compliance of its newly proposed plant configuration with those "other regulations" raises factual issues which (1) are not identified or addressed in LILCO's summary disposition motions, and (2) must be resolved prior to the issuance of the licenses for Phase I and II sought by LILCO.
The Licensing Board ig-noted this fact, even though LILCO's failure to comply with other regulations was explicitly raised in the State / County June 13 filing.
Again, therefore, the Board ignored the Seabrook rule of explaining the bases for its decision.
As set forth in the Affidavit of Gregory C. Minor and Dale G.
Bridenbaugh, attached to the County / State June 13 filing, the plant configuration now proposed by LILCO does not satisfy the requirements in the following regulations:
GDC 1 -- Quality Standards and Recorde GDC 2 -- Natural Phenomena GDC 3 -- Fire Protection GDC 4 -- Environmental and Missile Design Bases GDC 17 -- Electric Poder Systems GDC 18 -- Inspection and Test of Electric Power Syctocc I
GDC 33 -- Reactor Coolant Makeup I
GDC 34 -- Residual Heat Removal GDC 35 -- Emergency Core Cooling GDC 37 -- Testing of Emergency Core Cooling System GDC 38 -- Containment Heat Removal
- l l
-GDC 40 -- Testing of Containment Heat Removal System GDC 41 -- Containment Atmosphere Cleanup GDC-43 --' Testing of Containment Atmosphere Cleanup
. Systems
=
GDC 44 -- Cooling Water GDC 46 -- Testing of Cooling Water System Part 50, Appendix B -- Quality Assurance Criteria.
See Minor and Bridenbaugh Affidavit at paras. 6-8.
LILCO is not in compliance with GDC 1, 2, 3 and 4 because its proposed plant configuration does not include any safety-related, seismically or environmentally qualified onsite AC power sources. - Id. at para. 6.
LILCO does not comply with GDC 17, 18, 33, 34, 35, 37, 38, 40, 41, 43, 44 and 46, because (a) there is no onsite emergency AC power source in the proposed =
new plant configuration, and (b) since there is no such source, the transfer from offsite to onsite power cannot be tested as
)
required by those criteria.
Id. at para. 7, 10.
Finally, the proposed alternate plant configuration has not been designed, installed, tested, nor will it be operated in accordance with the criteria set forth in Part 50 Appendix B.
Id. at para. 8.
On the state of the record before the Board on September 5, LILCO's non-compliance with-these other regulations was un-
[
disputed.
Therefore, under the May 16 Order, LILCO clearly was required to obtain an exemption from compliance with all the above regulations befota any kind of license for Phase I or 1,
i
/
___.--...,___..--__.-...,~.._._______,..__.-__m.-___~,_.--._.._
s I
Phase II activities arguably could be issued.
LILCO's summary disposition motions and the Board's September 5 Order com-pletely ignore this fact, by discussing only GDC 17.
This Com-1 mission, therefore, must reverse the grant of LILCO's motions for failure to resolve the issues raised by LILCO's non-compliance with these NRC's regulations.
25 -
7
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rm crcc UNITED STATES OF AMERICA
~ ~ ':0 NUCLEAR REGULATORY COMMISSION Before The Commission
'84 SEP 14 P4:08 4
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY AND STATE OF NEW YORK VIEWS AS TO WHY THE ASLB'S SEPTEMBER 5 ORDER MAY NOT SERVE AS A BASIS FOR A " PHASE I AND II" LICENSE, dated September 14, 1984, have been served on the following this 14th day of September, 1984 by U.S. mail, first class, except as otherwise indicated.
Judge Marshall E. Miller, Chairman Edwin Reis, Esq.
Atomic Safety and Licensing Board Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the Executive Washington, D.C.
20555 Legal Director U.S. Nuclear Regulatory Judge Glenn O.
Bright Commission Atomic Safety and Licensing Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Edward M.
Barrett, Esq.
Long Island Lighting Judge Elizabeth B. Johnson Company oek Ridge National Laboratory 260 Old Country Road P.O.
Box X. Building 3500 Mineola, New York 11501 Oak Ridge, Tennessee 37830 Honorable Peter F. Cohalan Eleanor L. Frucci, Esq.
Suffolk County Executive Atomic Safety and Licensing Board H.
Lee Dennison Building U.S. Nuclear Regulatory Commission Veterans Memorial Highway Washington, D.C.
20555 Hauppauge, New York 11788
i-4
' FChicn Palcaino, ECg.
JaaO3 B. Dough 3rty, E q.
^
3045 Porter Street, N.W.
. Spe3ial Counsel to the Governor Executive Chamber Washington, D.C.
20004 Room 229 Mr. Brian McCaffrey Stote Capitol Long Island Lighting Company AlbCny, New, York 12224 Shoreham Nuclear Power Station I
P.O. Boz 618 W. Taylor Reveley, III, Esq.
Anthony F. Earley, Jr., Esq.
North Country Road Wading River, New York 11792
-Rabort M. Rolfe, Esq.
~Hunton s Williams P.O. Box 1535 Jay Dunkleberger, Esq.
New York State Energy Office 707 East Main Street Richmond, Virginia 23212 Agency Building 2 Empire State Plaza Albany, New York 12223 Mr. Martin Suubert c/o Congressman William Carney 1113 Longworth Bouse Office Bldg.
Stephen B. Latham, Esq.
W3ching ton, D.C.
20515 John F. Shea, Esq.
Twomey, Lathan and Shea 33 West Second Street Martin Bradley Ashare, Esq.
Riverhead, New York 11901 Suffolk County Attorney H. Lee Dennison Building Docketing and Service Branch voterans Memorial Highway Hauppauge, New York 11788 Office of the Secretary U.S. Nuclear Regulatory Commission Nunzio J. Palladino, Chairman U.S. Nuclear Regulatory Washington, D.C.
20555 i
Commission 1717 8 Street, N.W., Room 1114 Commissioner Lando W.
Zech, Jr.
Woching ton, D.C.
20555 U.S. Nuclear Regulatory Commission 1717 H Street, N.W.,
Room 1113 Ccamissioner Thomas M. Roberts Washington, D.C.
20555 U.S. Nuclear Regulatory i
t Commission 1717 H Street, N.W.,
Room 1103 Commissioner James K. Asselstine U.S. Nuclear Regulatory Wochington, D.C.
20555 Commission Commissioner Frederick M. Bernthal
- 1717 H Street, N.W.,
Room 1149 Washington, D.C.
20555 U.S. Nuclear Regulatory l
Commission 1717 H Street, N.W.,
Room 1156 f
Waching ton, D.C.
20555
?
dZ(2/r/tvfd Y Iterbert 11. Brown r
Lawrence Coe Lanpher KIRKPATRICK, LOCKIIART, iiI L L,
i CIIRISTOPl!ER & PilILLIPS 1900 M Street Suite 800 Washington, D.C.
20036 i
DATE:
September 14, 1984 1
By Hand
..