ML20100A052
| ML20100A052 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/29/1984 |
| From: | Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | |
| References | |
| CON-#484-386 OL-4, NUDOCS 8412030438 | |
| Download: ML20100A052 (17) | |
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LILCO, November 29, 1984 00CMETED w:r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION'34 'A P255
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Before the Commission In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4
) (Low Power)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S SUBSTITUTE COMMENTS CONCERNING IMMEDIATE EFFECTIVENESS OF LOW POWER INITIAL DECISION ,
I. INTRODUCTION On October 29, 1984, the Licensing Board issued its Initial Decision authorizing issuance of "a license or licenses to autho-rize low-power testing (up to 5% of rated power) of the Shoreham Nuclear Power Station, Unit 1." Initial Decision at 104. That Initial Decision followed nine days of exhaustive evidentiary hearings, six days of conferences with counsel and approximately 3,450 pages of transcript. It meticulously followed the Commis-sion's May 16 Order CLI'-84-8, 19 NRC 1154 (1984), both in format and substance.
This matter is now before the Commission pursuant to that May
< 16 Order. Departing from the norm under its regulations, which l require no immediate effectiveness review for a low power license,-
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.the Commission has ordered such an immediate effectiveness review here because an exemption is involved. Accordingly, LILCO files these substitute comments pursuant to 10 CFR S 2.764(f)(2)(ii) and the Commission's November 19, 1984 Order inviting comments con- -
corning "the correctness of the Board's application of the criteria in our Order of May 16 to Phases III and IV of low power operation."2 Because the purpose of an immediate effectiveness-review is simply to " determine whether to stay the effectiveness of the de-cision," 10 CFR $ 2.764(f)(2)(i), LILCO here comments within the following framework established by that regulation:
An operating license decision will be stayed by the Commission, insofar as it authorizes other than fuel loading and low power testing, if it determines that it is in the public interest to do so, based on a consideration of the gravity of the substan-tive issue, the likelihood that it has been resolved incorrectly below, the degree to which correct resolution of the issue would be prejudiced by operation pending review,
- and other relevant public interest factors.
10 CFR S 2.764(f)(2)(i). These considerations do not warrant a stay.
1 The Commission's November 19 Order, by thus defining the scope of comments invited from the parties, necessarily rejected the much broader scope of comments requested by Suffolk County and New York State in their " Request" of October 31.
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II. NO STAY SHOULD BE GRANTED w
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A. The Gravity of the Substantive Issues Does-Not Warrant a Stay Virtually by definition,~the authorization of a low power li-cense for Shoreham is not of sufficient gravity to support a stay.
The Commission's regulations expressly exclude low power licenses from immediate effectiveness review. 10 CFR 5 2.764- . This exclu-sion reflects a generic judgment that such licenses need not be
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stayed. The only reason an immediate effectiveness review was ordered here, presumably, is the involvement of an exemption request to allow low power testing to be conducted without the completed qualification of onsite. diesel generators. The Licens-ing Board, however, has expressly found'that there is no more risk to public health and safety from the proposed mode of low power testing than there would be with qualified onsite diesel generators. Initial Decision at 55.
B. There Is Little Likelihood that the Appropriate Issues Were Not Resolved Correctly Below The Commission has been involved extensively in this exemption proceeding almost from its inception. Thus, there is little likelihood that the pertinent substantive issues were not correctly resolved by the Licensing Board. Throughout, the Commission has offered guidance concerning the interpretation of i
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its regulations. The Licensing Board has reached factual findings and legal conclusions in accordance with that guidance.
On May 16, 1984, the Commission issued an Order establishing that LILCO must seek an exemption with respect to Phases III and IV of low power testing when onsite diesel generators would ordi-narily be needed to provide sufficient core cooling and achieve the other functions specified in GDC 17. Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984). Having determined that an exemption request would be necessary, the Commission then offered advice for conducting fur-ther proceedings to evaluate that exemption request. Implicitly recognizing that the common defense and security was not an issue, the May 16 Order gave guidance as to how the remaining aspects of J
10 CFR S 50.12 ought to be applied.2 First, it recognized that 2
Because the Commission's November 19 Order excluded the mer-its of security issues from the scope of permitted comments, LILCO provides here only a summary of that phase of the low power proceeding as a background. On July 18, 1984, the Commission gave further guidance with respect to security. The Commission held directly that " common defense and security" was not at issue, but that Intervenors ought to be afforded the opportunity to raise ad-ditional physical security concerns which might affect health and safety if those concerns pertained solely to the alternate AC power sources proposed for LILCO's low power operation. Long Island Lighting Co. (Shoreham Nuclear Power. Station, Unit 1), Mem- '
orandum and Order, July 18, 1984 (unpublished). Security issues were considered extensively by the Licensing Board subsequent to the Commission's Memorandum and Order entered July 18, 1984. See Initial Decision at 17-21. On September 19, 1984, in a 20-page restricted-distribution order following conferences of counsel and extensive filings by the parties, the Board rejected the seven security contentions proffered by the Intervenors, both cs a mat-l l (footnote continued)
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LILCO intended to prove the absence of danger to life or property by establishing that its proposed mode of low power testing would be as safe as low power testing at a plant having qualified onsite diesel generators. Second, the Commission addressed the regula-tion's public interest requirement, combined it with its own exi-gent circumstances requirement, and set forth explicitly the-fac-tors which ought to be considered in determining whether the equities would warrant-the granting of an exemption.
- 1. "As Safe As" The Licensing Board properly recognized that
[t]he "as safe as" standard used by the Com-mission in CLI-84-8 is an articulation of what LILCO had said it could prove. The applicable regulation, 10 CFR S 50.12(a), requires only a showing that the grant of an exemption will not endanger life or property. If LILCO can show that it has met this higher standard, it will have done more than is necessary to make the safety showing required to support the grant of its requested exemption.
4 Initial Decision at 28.
(footnote continued) '
ter of law and because the proffered contentions failed to include reasonable specificity, despite the Intervenors' access to de-tailed security information for nearly two years. Id. at 20.
Additionally, LILCO has voluntarily made certain low-power security enhancements, leading the Staff to indicate that its se-I curity concerns about low power questions have been resolved. Id.
! at 21.
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-l Thus, the-extensive evidence-proved that there will be no danger terlife and property by establishing.that operation of Shoreham as-proposed-by LILCO will be'as safe as operation at.a' plant with a fully qualified onsite AC power source because tie effect'on public health and safety will be the same: there I
will be none. The traditional deterministic. approach for safe-i ty analyses in NRC proceedings demanstrated the ability.of the
. I plant to withstand postulated accidents and transients and re-
[ main within the regulations' specified operational limits.
- j. Plants within those limits are deemed safe. Thus, the Licens- ,
l ing Board determined the time within which AC power must be re-1_
i: -stored following a postulated accident or transient in order to maintain operation within the specified limits. It then l examined LILCO's ability to restore power ~sufficiently quickly.
l As to the first of these inquiries, two witness panels, one of LILCO, General Electric and Stone & Webster-personnel and one of the NRC Staff, testified as to the events that could I
occur during low power operation and the time available to re-store AC power, Initial Decision at 36, and concluded that ade-
! quate time would be available for power restoration. The Li-censing Board observed: '
i Neither Suffolk County norlthe State prof-i fered any witness who challenged.these calcula-
- tions or any technical aspect of low-power op -
eration under the conditions of the requested.
exemption. The only challenge offered by the Intervenors to the . . . conclusions regarding
. times available for restoration of AC power had
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nothing to do with the validity of the results or.with whether the criteria of 6.50l.46 would be met. Their sole assertion in this area was only that the enhanced AC power sources might not be available within the 15 seconds postulated for the " fully ~ qualified" onsite emergency power.
The Intervenors did not challenge the assertion of LILCO and Staff that it is unimportant wheth-er core cooling starts within 15 seconds or 55 minutes as far as protection of the core and therefore public health and safety are con-cerned.
Initial Decision at 38-39.
4 l-The Board then exhaustively reviewed evidence concerning LILCO's ability to restore AC power. It examined the redundancy and reliability of LILCO's normal offsite AC power system which consists of a highly reliable, redundant grid sup-plemented by interconnections with two other power pools and blackstart gas turbines geographically surrounding-Shoreham.
It evaluated in detail the capacity, redundancy and reliability of LILCO's onsite enhancements to the normal offsite power sup-ply -- a 20 MW gas turbine and four 2.5 MW EMD diesel genera-tors. And, it concluded that the enhanced system "has the.re-1 quired redundancy, meets the single failure criterion and has sufficient capacity, capability and reliability to supply ade-quate emergency power for low-power operation of the Shoreham
- unit." Initial Decision at 54. In other words, Shoreham has sufficiently redundant, capable and reliable AC power supplies
, to operate within the same regulatory limits as are applied to l other plants. Thus, the Board applied the "as safe as" l
l standard in accordance with the Staff's interpretation and.
common-sense and found "that the enhanced system provides a comparable level of protection as a fully-qualified system would and thus meets the.'as safe as' standard set by the Commission in CLI-84-8." Initial Decision at 55.
Of course, it is not the Commission's function in this im-mediate effectiveness review to conduct a full review of the merits of the Board's factual findings. Nevertheless, the scope of the 3400-page record and the lengthy findings of the Licensing Board give assurance that the' safety of operation was carefully evaluated. In contrast to this abundant factual pred-icate supporting the "as safe as" finding, the Intervenors' sole factual contention was that each component of the alter-nate power system ought to be compared individually with the TDI diesels and subjected individually to a single failure analysis. Quite properly, the Licensing Board responded:
Suffolk County's arguments would have us conduct a point-by-point comparison of Shoreham's emergency power configuration with TDI diesels and without them. "As safe as" cannot be based on such a point-by-point comparison of the components of systems. In comparing any roughly equivalent power sys- '
tems, neither is required to be better than the other in every respect; even two "quali-fied" systems would not be identical in every respect. If LILCO's original and al-ternate emergency power systems were identi-cal in every respect, there would be no need for an exemption. The purpose of these sys-tems is to provide protection for public health and safety, by whatever combination of features they possess. Even the General
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Design Criteria themselves are premised upon the idea of what a system must be able to do, not upon whether one machine might be somewhat better than another.
Initial Decision at 25-26.
Indeed, a feature-by-feature comparison of a qualified-onsite power source with LILCO's AC power system would not a render a meaningful comparison of the safety of operation-during low power testing. Such a comparison would myopically disregard the reduced power needs at low power, the vastly increased time within which power need be provided and the potential for AC power to be restored from the normal offsite system (a potential unavailable at full power where AC power is-needed within seconds). The specifications for a qualified onsite power source are set for full power operation. Many of them are unimportant for low power operation, where there is lower risk due to reduced potential consequences and greater
- time to react. The Licensing Board did not ignore this crucial
- distinction as the Intervenors urged.
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- 2. Exigent Circumstances Similarly, the Licensing Board conducted extensive inquiry into the existence of exigent circumstances pursuant to the Commission's guidance. The May 16 Order instructed:
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A finding of exceptional circumstances is a '
discretionary administrative finding which gov-ern's the availability of an exemption. A rea-soned exercise of such discretion should take into account the equities of each situation.
These equities include the stage of the facili-ty's-life, any financial or economic hardships, any internal inconsistencies in the regulation, the applicant's good-faith effort to comply with the regulation from which an exemption is sought, the public interest in adherence to the Commission's regulations, and the safety signif-icance of the issues involved.
19 NRC at 1156 n.3. In its legal and factual analysis, the Board carefully examined each of these factors and weighed the equities.
The Licensing Board found from uncontradicted testimony that the Shoreham plant was physically completed. That status, combined with the extensive scrutiny to which this plant has been subjected in more than eight years of litigation before 4
seven different licensing boards, weighs in favor of granting the exemption.' Initial Decision at 59-60. The Board also found that financial hardships arose from having a physically completed, otherwise acceptable nuclear facility standing The Shoreham operating license proceeding before the NRC, in all its aspects (safety, emergency planning, low power, diesels),
has now amassed 235 days of evidentiary hearings, two favorable '
Partial Initial Decisions (safety, low power) and an Appeal Board affirmance (ALAB-788) as of October 31, 1984. Shoreham's con-struction permit proceeding involved 70 days of proceedings before the AEC between 1970 and 1973, plus 22 days of related proceedings before the New York Department of Environmental Conservation, por-tions of which were incorporated into the AEC record to avoid du-plication. Long Island-Lighting Co. (Shoreham Nuclear Power-Sta-
. tion, Unit 1), LBP-73-13, 6 AEC 271, 274 (1973).
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unused and nonproductive because of substantial licensing de-lays. Id. at 60-61. The Board further found that the licens-ing proceedings themselves have imposed unusually heavy finan-cial and economic hardships upon LILCO. Id. at 62-63. And the Board recognized that potentially reaching commercial operation earlier could result in an economic benefit to LILCO's custom-ers of approximately $8,000,000 in present worth dollars. Id.
at 61.*
The Board next examined the regulations themselves and found them internally inconsistent in their application. Ini- ,
tial Decision at 63-66. The Board then found that LILCO had made a good faith effort to comply with GDC 17 and that LILCO intends to comply fully with the requirements of GDC 17 for full power operation. Id. at 67.' Finally, the Board found no The County's evidence agreed that Shoreham was causing LILCO financial difficulties but did not address the effect of this low power license on alleviating those difficulties. The County's witnesses disagreed that there was any economic benefit from earlier operation, but after weighing the evidence, viewing the witnesses and assessing their credibility, the Board rejected much of their analysis. The Board properly struck the County's prof-fered testimony concerning financial qualifications and the poten-tial costs of decommissioning the plant if a full power license were not granted.
5 The Board stated:
The Intervenors attempted by cross-examination to show that in hindsight, LILCO might arguably
- have pursued some problems differently or more l aggresively (footnote omitted]. However, the l
requirement established by the Commission in-(footnote continued) l L.
public interest in mechanical adherence to the regulations and no safety significance.given its health and safety findings that operation as proposed by LILCO would be as safe as op-eration at low power with qualified onsite diesel generators.
Id. at 68-70.
The Intervenors might not agree with the Board's findings and conclusions, but there can be little doubt that the Board scrupulously followed the standards established by CLI-84-8.
In so doing, the Board heard extensive testimony, viewed a numerous witnesses and evaluated their credibility, studied numerous exhibits and heard comprehensive arguments by counsel for all parties. Given that effort and the facial consistency of the Initial Decision with CLI-84-8, any error alleged by the Intervenors corld be discovered only by an exhaustive-review of a lengthy factus1 record. Clearly that is an inappropriate un-dertaking for en immediate effectiveness review.
(footnote continued) volved " good faith efforts" to comply with the regulations, not whether they were perfect or sufficiently prudent.
Id. at 67.
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C. Even If Error Existed in the Board's Factual Determinations, Correct Resolution Would Not Be Prejudiced by Operation Pending Review The commencement of Icw power testing is not irreversible.
It can be stopped at any time if the Commission were to find that the Licensing Board made improper factual findings con-
, cerning safety or exigent circumstances. In evaluating any prejudice from immediate effectiveness, the Commission should keep in mind that the Licensing Board found by summary disposi-tion that there was no need for AC power for either Phases I or II of the proposed low power testing and the Commission has au-thorized issuance of such a license. Order, November 21, 1984.
Thus, the capacity of LILCO's AC power sources is totally ir-1 relevant until Phases III and IV. When the time necessary to complete Phases I and II is combined with the two to three week lag between the granting of that license and fuel load, there I
is a substantial time period for any appeal to progress.' Even should Phases III and IV be reached before any appeal may be decided, testing could be stopped at any time in the unlikely event that a decision adverse to LILCO warranted such action.
The Phase I and II license cannot issue until at least December 5, 1984. The Intervenors' initial brief on appeal will~be due December 13, 1984. Of course, the Intervenors may file earlier if they believe time to be of the essence.
The Intervenors may again attempt to argue, as they have in their recent Request of Suffolk County and New York State to Present Written Briefs and Oral Arguments on the Licensing Board's Low Power Decision, that the effects of commencing low power testing are irreversible. This argument seeks, however, to resurrect the Intervenors' old contention that no low power license should issue in the face of uncertainty surrounding ul-timate issuance of a full power license. This Commission has 1
rejected that argument. The sole question now before the Com-mission is whether the exemption sought by LILCO was properly approved, thus permitting the early commencement of low power testing before completion of licensing proceedings concerning-onsite diesel generators.
4 D. Other Public Interest Factors There are no appropriate public interest factors
, commending a stay of the Phases III and IV license pursuant to this immediate effectiveness review. Indeed, in addition to the unusual step of subjecting a low power license to an immediate effectiveness review, this situation is atypical in that the Licensing Board has already considered and evaluated public interest factors in deciding to recommend the grant of an exemption and authorize a low power license pursuant to 5 50.12(a) and CLI-84-8. Again, unless this Commission intends to duplicate the Licensing Board's fact finding process, there i
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is no need to revisit public interest factors in this immediate effectiveness review.
IV. CONCLUSION As a result of the extensive guidance given the Licensing Board by this Commission, the extensive factual findings con-cerning the issues framed by the Commission and the opportunity for argument before the Licensing Board, there is no basis in the record of the low power proceeding for a stay of the Ini-tial Decision. Accordingly, the Commission should declare the Initial Decision immediately effective.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY I
By J _e 6 W.' Taylor R6v61ey, III Donald P. Irwin Robert M. Rolfe Anthony F. Earley, Jr Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: November 29, 1984 _
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p c-O LILCO, November 29, 1984 i
CERTIFICATE OF SERVICE i
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In the Matter of ;
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-4 (Low Power) n%:.
I hereby certify that copies of LILCO'S SUBSTITUTE COMMENTS
~CONCERNING IMMEDIATE EFFECTIVENESS OF LOW POWER INIYlALl, DECISION _
were served this date upon the following by U.S. mail, fi'rst FZ OD class, postage prepaid or by hand (as indicated by one asterisk) or by Federal Express (as indicated by two asterisk,s,)f.Y.-a51.n
" g)yUv:
Chairman Nunzio J. Palladino* Gary J. Edles**
, United States Nuclear Atomic Safety and Licensing Regulatory Commission Appeal Board, United States 1717 H Street Nuclear Regulatory Commission Washington, DC 20555 .Fifth Floor (North Tower)
East West Towers Commissioner James K. Asselstine* 4350 East-West Highway United States Nuclear Bethesda, Maryland 20814 Regulatory Commission 1717 H Street, N.N. Howard A. Wilber**
Washington, DC 20555 Atomic Safety and Licensing Appeal Board, United States Commissioner Frederick M. Bernthal* Nuclear Regulatory Commission United States Nuclear Fifth Floor (North Tower)
Regulatory Commission East West Towers 1717 H Street, N.W. 4350 East-West Highway Washington, DC 20555 Bethesda, Maryland 20814 Coraaissioner Thomas M. Roberts
- Judge Marshall E. Miller,**
United States Nuclear Chairman, Atomic Safety Regulatory Commission and Licensing Board 1717 H Street, N.W. United States Nuclear Washington, DC 20555 Regulatory Commission Washington, DC 20555 Commissioner Lando W. Zech, Jr.*
United States Nuclear Regulatory Commission Judge Glenn O. Bright **
1717 H Street, N.W. Atomic Safety and Licensing Washington, DC 20555 Board, United States Nuclear Regulatory Commission Washington, DC 20555 Alan S. Rosenthal, Chairman ** '
Atomic Safety and Licensing Appeal Board, United States Nuclear Regulatory Commission Judge Elizabeth B. Johnson **
Fifth Floor (North Tower) Oak Ridge National Laboratory East West Towers Building 3500 4350 East-West Highway P.O. Box X Bethesda, Maryland 20814 Oak Ridge, TN 37830
p, 1 l
l Eleanor L. Frucci, Esq.**
Atomic Safety and Licensing Stephen B. Latham, Esq.**
Board, United States John F. Shea, Esq.
Nuclear Regulatory Commission Twomey, Latham & Shea Washington, DC 20555 33 West Second Street Riverhead, NY 11901 Edwin J. Reis, Esq.**
Bernard M. Bordenick, Esq. The Honorable Peter Cohalan Office of the Executive Suffolk County Executive Legal Director County Executive /
United States Nuclear Legislative Building Regulatory Commission Veterans Memorial Highway Washington, DC 20555 Hauppauge, NY 11788 Herbert H. Brown, Esq.** Jay Dunkleberger, Esq.
Alan R. Dynner, Esq. New York State Energy Office Lawrence Coe Lanpher, Esq. Agency Building 2 Kirkpatrick & Lockhart Empire State Plaza 8th Floor Albany, NY 12223 1900 M Street, N.W.
Washington, DC 20036 Mr. Martin Suubert c/o Congressman William Carney Fabian Palomino, Esq.** 1113 Longworth House Office Special Counsel to the Governor Building Executive Chamber, Room 229 Washington, DC 20515 State Capitol Albany, NY 12224 Docketing and Service Branch (3)**
James B. Dougherty, Esq.** Office of the Secretary 3045 Porter Street United States Nuclear Washington, DC 20008 Regulatory Commission Washington, DC 20555 Martin Bradley I. share, Esq.
Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, NY 11788 Robert M.
/Rfe Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: November 29, 1984