ML20108B173

Rept on Remand Issues Per ASLB 841105 Order

ML20108B173
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/14/1984
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:
Shared Package
ML20108B175	List: ML20108B173 ML20108B273
References
CON-#484-130 ALAB-788, OL, NUDOCS 8411150337
Download: ML20108B173 (32)

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LILCO, November 14, 1984 UNITED STATES OF AMERICA '8.] c r,'JJ NUCLEAR REGULATORY COMMISSION 09!I2 5efore the Atomic Safety and Licensing Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL

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(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S REPORT ON REMAND ISSUES PURSUANT TO LICENSING BOARD'S NOVEMBER 5, 1984 ORDER On October 31, 1984, the Appeal Board issued its Decision on the appaals from this Board's Partial Initial Decision (LBP-83-57, 18 NRC 445 (1983)) in this case (hereinafter "LBP-83-57" or "PID"). Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, NRC (October 31, 1984) (hereinafter "ALAB-788").1/ The Appeal Board summarized its decision as fol-lows:

We turn now to a resolution of the issues on appeal. Like the Licensing Board, we decide those issues essentially in the applicant's favor. We do, however, remand three relatively minor matters to the Board: (1) the question whether the plant may be operated pending reso-lution of Unresolved Safety Issue A-47 as dis-cussed in Section II(D); (2) resolution of cer-tain issues associated with housekeeping, as discussed in Section III, and (3) the issue of 1/ All citations to ALAB-788 will be to the slip opinion.

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the environmental qualificationLof electrical equipment as. discussed in~Section'IV(B).

ALAB-7N8at6. -

On' November 2,'.this Board' issued a bench Order.and on-

' November 5 a confirmatory-Order providing-an.. opportunity for af-fected parties to provide 1by-November 14 joint,.or coordinated, reports'on (1) the status of the three issues romanded by the Ap-peal Board in ALAB-788, (2),any further procedural' and substantive actions deemed necessary to be acc.omplished by the parties among

' , Jt hemselves'or before the. Board, and (3 ) the effect 'of the 1three issues')on issuance of a low power license.

The affected parti'es (LILCO, NRC Staff, Suffolk County) have conferred by telephone and have exchanged views on each.of the three questions as to each of the three matters remanded'by the Appeal Board. This report, which is submitted on behalf of LILCO, addresses each of these matters. LILCO understands.that the NRC Staff supports its~ view on each of them. LILCO also understands that Suffolk County agrees that the housekeeping issue has been satisfactorily resolved but that it is not prepared at this time -

to take a position on the environmental qualification or Unresolved Safety Issue A-47 matters.

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l A. HOUSEKEEPING

1. Current Status As the Appeal Board noted, ALAB-788 at'73-74,LLILCO' committed to undertake a range of actions to resolve various long-standing,.

construction-related housekeeping problems addressed by the Staff in Confirmatory Action Latter.83-01. At the time of issuance of the PID, the record reflected preliminary indications that im-,

provements were being -implemented by LILCO pursuant to those com-mitments. ALAB-788 at 74 n.245. On the strength of these indica-tions and the Staff's concurrence that'none of these housekeeping matters had. safety implications, this Licensing Board concluded that housekeeping matters had been adequately resolved. See ALAB-

'788 at 74.

On appeal by Suffolk County, however, the Appeal Board concluded that in view of the long-standing nature of housekeeping deficiencies at Shoreham, the Licensing Board should have retained jurisdiction "to await LILCO's further actions to ensure that housekeeping problems no longer existed," rather than concluding the issue "on the strength of an assumption to that effect." Id.

at 75. Accordingly, the Appeal Board remanded the matter to this Board, requiring (1) the Staff "to certify to the Board that LILCO has met its commitments and is maintaining on appropriate level of cleanliness," and (2) the Licensing Board to " review the Staff's certification to determine whether compliance has been achieved."

Id. ac 75-76.

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The Staff-has certified, in an " Affidavit of Edward G.

'Greenman in ResponseLto ALAB-788," dated November 7, 1984 (Attach-ment -1 hereto):

1. that LILCO has made, and has implemented, substantial-commitments with respect to housekeeping in response to-and' consistent with-CAL-83-01 (compare ALAB-788 at 73-74 with Greenman Affidavit at 11 6-10);.

2. that LILCO's implementation of these~ commitments.has been repeatedly monitored and documented by resident inspec-tors and others,-throughout essentially the entire plant,

'Greenman Affidavit at 11 7-10, and that LILCO's actions marked "the turning point in housekeeping conditions and practices at Shoreham" and have led to "a steady improvement in housekeeping and cleanliness" at Shoreham, id. at 11 7-8; and

3. that the current housekeeping practices now provide acceptable levels of cleanliness at Shoreham, id. at 1 10.

2. Further Actions Required By the Board or Parties The Appeal Board's Decision required certification by the Staff as to two matters: LILCO's fulfillment of its commitments in response to CAL-83-01 and the current status of housekeeping at Shoreham. That certification has been given in the attached Affi-davit of Edward G. Greenman. No further action by the parties is required.

The only further action contemplated for the Board by ALAB-788 is to determine whether Mr. Greenman's Affidavit adequately treats the two matters required by the Appeal Board to be certi-fied, and, if so, to dismiss the issue on the basis of that L

Affidavit. LILCO submits that the Affidavit is adequate to sup-port such dismissal without further ado, and that the Board should do so.

3. Effect on Issuance of Low Power License The housekeeping issue, once dismissed, would have no effect on the issuance of a low power license for which Shoreham was oth-erwise eligible.2/

B. Environmental Qualification

1. Current Status The Commission's environmental qualification regulation contains a provision requiring qualification of nonsafety-related electrical equipment whose failure under postulated environmental conditions could prevent successful accomplishment of specified safety functions by safety-related equipment. 10 CFR

$ 50.49(b)(2). At the time of the trial of this issue in late January 1983, this regulation had been issued but had not yet be-come effective, and thus neither LILCO's assessment of compliance with it nor the Staff's review had been definitively completed.

2/ The housekeeping matters before this Board do not have any safety significance. Even if the Board were to consider fur-ther proceedings of any sort to be necessary with respect to them, the pendency of any such proceedings should not impede issuance of a low power license.

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-6' LBP-83-57, 18 NRC at 538. At trial, LILCO witnesses stated that  ;

the design philosophy of Shoreham was'such that all equipment whose. failure could prevent successful accomplishment of safety functions had either-been classified as safety-related (and there .

fore'had-been environmentally qualified) or had been.sufficiently isolated from safety-related equipment.to prevent such failure.

LBP-83-57,-18 NRC at 538 and unpublished Finding of Fact I-14.

The Staff-testified that, for newer plants such as Shoreham, equipment which might otherwise be subject to S 50.49(b)(2) was typically classified as safety-related (or 1E), and agreed with LILCO that.at Shoreham the. class of items of equipment affected by

$ 50.49(b)(2) would be very small or nonexistent. LBP-83-5, 18 NRC at 538-39 and unpublished Finding of Fact I-15. The Staff also stated that it'would require LILCO to submit a further

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listing of any equipment to be qualified under 9 50.49(b)(2).

LBP-83-57, 18 NRC at 538 and unpublished Finding of Fact I-13.

On these bases, and in the absence of persuasive arguments to the contrary, this Board concluded that the impact of 5 50.49(b)(2) would be "small or nonexistent," and found the envi-ronmental qualification program at Shoreham to be adequate, sub-l ject to a requirement that any items of equipment found to be l within the reach of $ 50.49(b)(2) either be qualified or be justi-fled for interim operation under 5 50.49(i) prior to fuel load.

LBP-83-57, 18 NRC at 544. This Board also found that the l

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' deficiencies:in-the environmental. qualification-review process

~were sufficiently minor-that they could be left to the' Staff for further administration and that there was no need for further lit-igation of'the' scope.of 5 50.49(b)(2). Id.

-The Appeal Board affirmed-this Board's general finding that LILCO's_ approach to qualification of electrical equipment -- clas-sifying it as safety-related and qualifying it accordingly, or isolating it -- was satisfactory. 'ALAB-788 at 100-101. The Ap-peal Board also ratified this-Board's finding that there would be "little or no" equipment within 5 50.49(b)(2) at Shoreham. Id. at 103-04. The Appeal Board also approvingly' reviewed this Board's delegation of further resolution of 9 50.49(b)(2) matters to the StafA, as follows:

As we read the Board's decision, the staff is being asked simply to confirm that LILCO has either upgraded or properly isolated nonsafety-related equipment so that no nonsafety-related equipment falls within the $ 50.49(b)(2) cate-gory. In our judgment, such confirmation does not constitute an improper delegation of adver-sary issues from the Board to the staff.

ALAB-788, slip op. at 104. Thus, if LILCO's post-hearing review and notice thereof to the Staff concluded that there were no items of equipment at Shoreham requiring qualification under i

5 50.47(b)(2), then closing out of that matter could properly be I

left to the Staff and would not require any further proceedings before this Board.

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[However,1the Appeal Board; contintied, if - : but = only -if --

LLILCO's:-confirmation program concluded that:there-'wereLitems,ofH equipment requiring qualification under;$150.49(b)(2),aandiLILCO' chose :to jus'tify; interim ' operation before environmental qual'ifica- '-

tion, thenf"[i]n,such circumstances the-; County'would__be entitled _

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"to addressIthis matter."-jId. -This last' respect'was the only one in which the' Appeal Board's approach or' conclusions departed from those of this= Boar'd.

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The Appeal Board then observed that the current; factual- 7 >

.recor.d was inconclusive on this last issue. -'It-noted th'at as of-

August,1984,:the Staff had stated that the: issue of qualification-

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under $c60.49(b)(2) "has'been resolved by LILCO to the satisfac-tion of the. Staff,"LALAB-788 at'105.3/ 'However,-the_ Staff had not "

stated:that the basis for its resolution -- i.e., whether the Staff'had concluded'that no equipment requiring = qualification under 5 50.49(b)(2) existed, or whether the Staff'had concluded that such equipment existed but that LILCO was making satisfactory.

progress toward qualifying it and/or justifying prequalification l interim operation. Id. The Appeal Board thus required the-Staff i- - "to advise the Licensing Board . . . whether any equipment falls l-

'3/ Memorandum from A. Schwencer, Chief, Licensing Branch #2, to Edwin'Reis, Assistant Chief Hearing Counsel, July 30, 1984, page 2.1 6, covered by letter from Bernard M. Bordenick to '

Attached Service List, Docket No. 50-322-OL-1, August 7, 1984 (collectively,' Attachment 2 hereto).

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. (into the15{50.49(b)(2)Ecategory:and, if so,'the basis forf.the? .

'_ lStaff'sNapproval)" 'Id i(emphasis added). This - Board was - then en- i

joined to'" review"the ' Staff'sfsubmiasion1and take'suchifurther.ac'-

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Etionjas.it deemsLnecessary." M ..

'Sincefthe;tr4alzof environmental-qualific.ation' D issues,--LILCO has performed thelfurther review required of it by the St'aff to

. confirm' whether- any- equipment, ~at' Shoreham 'should .be qualified pur-

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suant-to'5.50.49(b)(2). .That review tested the= design philosophy.

{' of.Shoreham through,a number of systems; interactions' studies,4/;:

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and'through;Shoreham'.s compliance with stringent-electrical.

separation criteria.5_/ This review confirmed the. goal of the Shoreham electricai isolation design philosophy, namely, to-assure.

that nonsafety-related electrical equipment at Shoreham cannot.

fail in such a way as to prevent the accomplishment.of required t.

4J Various of these studies had been performed prior to he hearing itself'and had been referenced there, either in ques-

tioning on environmental qualification or-in the' litigation of~ ,

. Contention 7B. See Tr. 19,651-54 (Kascsak). Two additional  :

[ studies, a Control Systems Failure Study and a High Energy Line-Break / Control Systems Failure Analysis, were completed after the' hearing, and were considered by the Staff to have resolved those issues in September 1983 in SSER 4, $$ 7.".1 and 7.7.2.

- '(See Attachment 10). Each of these documents was served on the i Licensing Board and all parties at the time it was issued. See

, also pages 14-15 below.

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[ 5 LILCO committed to meet Regulatory Guide 1.75, Revision 1,

'/Physical Independence of Electric Systems," and IEEE Std. 384-1975. The Staff felt that compliance with Reg. Guide 1.75

'would'largely= account, by itself, for the absence of equipment l i p in the $ 50.49(b)(2) category. Unpublished Finding of Fact I-16.

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safety' functions,'and thus that no' equipment subject to l 5 50.49(b)(2) exists at Shoreham. LILCO reported this' post-

? hearing-confirmation to the-Staff'in1SNRC-911, dated June 24, 1983

'(Attachment 3 hereto',,with

) copies simultaneously to this_ Board,-

-to-Suffolk County, and'toDthe other parties.

The Staff initially. indicated'its concurrence in LILCO's. con-clusion,_as the' Appeal Board noted, in a July 30, 1984 memorandum

.from A. Schwencer: to Edwin Reis ( Attachment 2 hereto) resolving.

'various of the license conditions attached to this-Board's PID.

However, that-concurrence merely noted that'the matter. hat seen

" resolved by'the Applicant to.the satisfaction of the NRC Staff,"

and that~the matter would be closed out in forthcoming SSER-7.

Then in SSER 7 (September 1984), 1 3.11.3, ("Conformance with 10 CFR 50.49"), the Staff referred to LILCO's follow-up review of the

-applicability of 6 50.49(b)(2).6/ In subparagraph 3.11.3.1, the Staff again observed that LILCO "has indicated that no Shoreham equipment-is in this [$ 50.49(b)(2)] category," and concluded that the Staff's review of this area "has been completed and all issues have been~ satisfactorily resolved." SSER 7 at page 3-8.7/ See 6/ The SSER reference is to SNRC-911, characterized as LILCO's " letter dated June 24," 1983. The other letters re-ferred to in 1 3.11.3, dated August 3 -(SNRC-945), August 15 (SNRC-952) and September 9, 1983 (SNRC-961), deal with a sepa-rate matter -- the scope of design basis events covered by LILCO's.EQ program.

7/ In neither of these concurrences did the Staff state spe-cifically its' conclusion a's to whether any 5 50.49(b)(2) equip-(footnote continued)

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Attachment 4.

. As noted'above,-the Appeal BoardLindicated in ALAB-788 that the potential future-course of this matter would depend on the basis.of-the Staff's-final resolution: whether or not equipment-requiring qualification under i 50.49(b)(2) had been determined to exist at_Shoreham and, if. so, was being justified for interim op-eration (rather than being finally qualified) prior to fuel load.

The Staff has responded to the-Appeal Board's direction.with an Affidavit from Robert G. LaGrange, Section Leader.in the Environ-mental Qualifications Branch ~of the NRC Staff. (Attachment 5).

Mr. LaGrange's Affidavit, at 1 3, states specifically that the Staff's review was sufficient to enable it to conclude that no-equipment-at Shoreham falls within the category described by

$ 50.49(b)(2), and that this conclusion is the basis for the Staff's resolution set forth in SSER 7, paragraph 3.11 and specif-ically subparagraph 3.11.3.1.

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(footnote continued) ment existed at Shoreham, or whether, if so, it had either been adequately qualified or interim-justified. However, until the Appeal Board issusi ALAB-788 the Staff's reasoning would not have made any difference since this Board's decision did not distinguish among various bases for the Staff's conclusions as to future disposition of this issue.

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-- 12-2.-;Further Actions Requirnd by the-Board or-Parties The' Appeal-Board in ALAB-788. required the Staff to' advise

-this. Board as-to the-basis for resolution of-$ 50.49(b)(2) matters at-Shoreham: whether orfnotiany-equipment requiring qualification or justification for interim operation _under 5.50.49(b)(2)1 exists at Shoreham. ' The Appeal Board' agreed with this Board that.this thresholdidetermination was appropriately a Staff function not reqr 2ing further' Board attention. .If,'and only if, the Staff's advice-to:1 die Board revealed the existence of such equipment, for which LILCO was attempting to obtain_ justification for interim op-erationi did the Appeal Board contemplate further proceedings.

ALAB-788 at 104. _ Thus a-statement by the Staff that no such~-

equipment exists at Shoreham enables this Board to dismiss this issue without further ado. The Staff has so stated, see-the Affi-i i davit.of Robert G. LaGrange, 13. This Board should dismiss this issue.

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, 3. Effect on Issuance of Low Power License i' Under the Appeal Board's decision, this Board should dismiss the $ 50.49(b)(2) matter promptly on the basis of Mr. LaGrange's Affidavit. Thus, as with the housekeeping. matter, there should be no further proceecings on this issue and no effect on the issuance j of a low power license.g/

f g/ Also as with housekeeping, neither this Board nor the Ap-l peal' Board found any issues of potential safety significance (footnote continued) r

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.l LC. Unresolved-Safety Issue A-471

'l.:-Current Status (Unresolved Safety Issue '(USI) A-47. concerns the potential for

. control' system failures or: malfunctions intsrfering with-the use of' safety equipment in the event of an: accident.or transient.

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ALAB-788'at 55. This unresolved safety issue'was raised in the-Shoreham case as part of afbroader' systems interaction contention.

See LBP-83-57, 18 NRC at-552.- ' Altihough no specific control system interaction evaluation had been performed for Shoreham at the time testimony was presented, LILCO had completed extensive studies of systems' interaction in general. ALAB-788 at 56. The evidence presented to_the Licensing' Board demonstrated that control systems interactions:had been considered in the design-of Shoreham, see, ,

e.g.,.LBP-83-57, unpublished Findings of Fact J-46 to -53, J-86 to

-89; that the NRC Staff believed the consequences of any such in-teractions were bounded by the design basis accident analysis, unpublished Findings of Fact J-212, -216; and that the NRC Staff would require two additional studies 9/ to confirm that control (footnote continued) associated with final resolution of the i 50.49(b)l2) matters.

Tlnis even if this Board were to conclude that further proceedings were necessary, they should not affect issuance of

a low power license.

9/ The NRC asked LILCO to assess (1) the effect of power sup-

i. ply, sensor and sensor impulse line failures on several control

. (footnote continued)

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s- systems interactions;were-notiaLppoblem'for Shoreham,'18 NRC at-552. .LThis. Licensing-Board concluded that.there was an' adequate

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ibasis :for resolving A-47; for1 Shoreham. 18 NRC at'555.

-on appeal, Suffolk County argued that-the resulta of the two- _

confirmatory studies must be.made'part of.the adjudicatory. record.

-The Appeal Board = agreed and remanded the issue to'the Licensing Board to= include ~the results of theistudies'in.the record. ALAB-T 788 lat 57-59. . ,

Both of the studies required 'by the Staff have been-completed:

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by LILCO and have been' reviewed and approved by the. Staff. - The results of'the control system-power supply study.were2 originally.

submitted to the NRC on August 27, 1982-(SNRC-761) (

Attachment:

6).

f; The NRC Staff reviewed-thiefsubmittal and, by letter dated

l. November 24, 1982 (Attachment 7), requested additional informa-tion. This additional information was submitted by LILCO on April-22, 1923 (SNRC-872) (Attachment 8) and June 00, 1983 (SNRC-905)

{ (Attachment 9). The NRC Staff-reviewed this additional information

j. and found that it completely resolved the control system issue.

SSER 4, l 7.7.2 (September 1983) (Attachment 10).

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j (footnote continued) i systems (control system study) and (2) the effect of high ener-

, gy line breaks on control systems (high energy line break or

] HELB' study). ALAB-788 at 57 n.197.

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_ .With respect to high energy line breaks, LILCO' submitted la-study. analyzing'the. effects of such breaks on control systems on

Novemberj8, 1982 (SNRC-78'6) (Attachment 11). By letter dated

- -January :24, ' 1983 . ( Attachment 12 ) the. Staff; requested additional' information, which.LILCO submitted on May.11,1983 (SNRC-887)

- (Attachment 13).

Following review-of this information, the Staff

'found the high. energy.line break issue resolved. ;SSER 4,-5 7.7.1 (September 1983):(Attachment 10).

The Licensing Board and all parties, including Suffolk County,.were provide'd with copies of.each of the above referenced.

documents'when they'were' issued.

The NRC Staff'has confirmed the resolution of USI A-47 for-Shoreham in affidavits executed in response to ALAB-788 by Andrew

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J, Szukiewicz and Jerry L. Mauck, Attachments 14 and 15. Mr.

Szukiewicz, the Task Manager for USI A-47 within the Generic Is-sues Branch,. reports that the NRC Staff did require LILCO to per-form a high energy line break study and a control system study, Szukiewicz Affidavit at 11 5-7, and that on the basis of satisfactory. completion of these studies, Shoreham can operate at any power level consistent with protection of the health and

- safety of the public, notwithstanding the generic pendency of USI A-47. Szukiewicz Affidavit at 1 8.

Mr. Mauck was the Staff reviewer of the HELB and control sys-tems studies and prepared the Staff's resolution of the concerns I u si o -

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addressed'by :those studies in SSER 4 (September 1983), E11 7.-7.1, 7.7.2 and 1.5 (Attachment 10). Mauck Affidavit,'1 2. .Mr.-Mauck's Affidavit summarizes these studies, confirms that the Staff's evaluation of them in SSER 4 is'true and correct, and states that these studies provide an acceptable means_to resolve the Staff concerns addressed by them. Id. 11 2-4. Mr. Mauck also states that all documents relied on in his review are set forth in SSER

4. Id. 12.

2. Further Actions Roquired by the Board or Parties Based on these Staff affidavits, LILCO submits that the Board can conclude that the generic pendency of USI A-47 should have no effect on the issuance of a license to Shoreham. Consistent with the Appeal Board's instructions, this Board should include the pertinent information in the Shoreham record and close the issue.

Unlike the other remanded matters, however, the Appeal Board gave the County the opportunity to test the basis for any conclusions concerning the two studies in question. ALAB-788 at 59.

Consequently, this Board must determine whether the County will seek to test the results of the two studies and, if so, the per-missible nature and scope of any such inquiry.

< From telephone conferences among the parties it is LILCO's understanding that Suffolk County is not presently prepared to

state whether it will seek to challenge the HELB study and the l

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c controit sy' stems ' study. Before' engaging',the(procedures tosbe used fin conducting;Eny fu'ture proceedings,?the' Board must decide wheth--

.er?any'such proceedingsiare-appropriate.

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$ The fact;that the AppealiBoard made the results of-these studies available:for: litigation doesinot'mean that relevant

, intervening circumstances:should_be ignored. Such circumstances, not. revealed by the' Appeal Board's decision, nor apparently known to-it,-includecthe following:

1. zThe fact that new' studies were performed by-LILCO following;close of the record before the Licensing _ Board; The fact-thatLthese~ studies were: reviewed and accepted by

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.the Staff in -SSER 4, published in September 1983, more -

tJuut a _ year ago;

3. The fact that these studies and the Staff's review of

-them were~provided_at the time of their issuance to all ,

parties; i

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4. The' fact that questioning relative to the intended-scope and methodology of these studies took place when they  ;

were being planned (see footnote 10 below); '

5. The fact that ncne of the parties having access.to these t studies has ever sought either to roopen the record on-USI A-47 or to have a new contention admitted on their basis; and

, 6. The fact that the Staff reviewer, Mr. Mauck, has stated j' in his Affidavit'that his conclusion, and the-Staff's po-

! sition, on USI A-47 has not changed since issuance of

! SSER-4,' and that the documents relied on in.his current

{- review are all set forth in the pertinent parts of

SSER 4.

i- .In short, this matter has been allowed to lie fallow for over a year despite:further submissions by LILCO, its closure by the Staff, and the availability of new material to test the basis for I-I i

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l that closure. -It is thus not-the 4ame as-a-remanded issue where

the facts _have not changed during the pendency of the appeal and

.the parties.thus have no? impetus or' obligation to protect their interests'in the-interim.

Given the material developments since the record on this

-issue closed-before_this Board two years ago, any party wishing to litigate the resolution of USI A-47 further should be required to ecet threshold tests. The Board should require any_such party to state promptly'the precise aspects of.the studies it seeks to challenge, the basis.for any allegations of. inadequacy, and'the reasons why it did not move to reopen the record when-the,results of the study were first received.10/ Once the Board has this in-formation, it can then rule on the appropriate scope of a hearing, if any.ll/

10/ Not only is this procedure appropriate in light of the failure of any party to raise any safety concerns in a timely manner, it is also important to limit the inquiry to the results of the analysis. It would be improper to permit inquiry into the scope or methodology used since information concerning these aspects of the studies was presented on the record and was the subject of cross-examination. See Burns, et al., ff. Tr. 4346, at 59-60; Tr. 5129-31 (Dawe); Tr. 5144-47

_(Dawe, Robare)).

11/ LILCO has not proposed a schedule for further proceedings.

Any schedule must necessarily depend upon (1) the desire of any eligible party to pursue litigation, (2) the Board's conclu-sions with respect to the permissibility and scope of any hear-ings and (3) the Board's views on whether licensing must await their completion.

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- 19 In view of the advanced stage of this proceeding, expedition in' reaching a decision on further; proceedings is warranted. It is worth noting that counsel for Suffolk' County. informed counsel for-LILCO and the NRC' Staff on' November 13 by telephone that the Coun-ty was as yet unable to determine whether it wished to pursue lit-

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igation of USI A-47 before obtaining and reviewing further docu-ments. The Appeal' Board's decision was issued two weeks ago, on

. October 31;_this Board putithe parties on notice on November 2

-(Tr. 25,682-84)'that it would expect reports from the parties on November 14;'and in a call'on November 9, counsel for the Staff and LILCO both offered to make existing documents relating to this or other issues available to the County on request (none was re-ceived). Under these circumstances, indecision weighs against the party who would revive litigation of this issue.

3. Remand Issues Do Not Preclude Issuance of a Low Power License As already noted, there is ample basis for the Board to find that the pendency of USI A-47 generically does not stand as an ob-stacle to operation of Shoreham on the merits. Even if'the Licensing Board finds that further proceedings are appropriate on the remanded portion of USI A-47, Shoreham's licensing need not be delayed.

In Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-83-27, 18 NRC 1146 (1983), the e

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t ICommission permitted!-fuel?loadingE.and precriticality4teating even

-though Appeal Board. hearings.'were still.in progress'on;significant

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. quality assurance issues.l_2/],The Commission found there that the f"riskitolpublic health and safety from fuel' loading,and--

preeriticality testing is. extremely low since no self-sustainingt ,

~

, chain reaction will take place . . . ."~ Id.-.at 1149.- This ex-tremely lowLrisk-justified-authorizing the activities in question even though adjudicatory; hearings on significant quality assurance

' issues'had not-been completed. Fo'r.the same reason, Shoreham may.

be permitted to conduct Phase I'and Phase:II operations, notwith-standing any pending proceedings'on USI A-47. Phase I of.LILCO',s low power testing program is essentially. identical to the-testing authorized in Diablo Canyon. In addition, Phase 2II testing-(ini-tial criticality) also presents essentially no risk to the public. .

Order Reconsidering Summary Disposition of Phase I and Phase II' Low Power Testing (September 5, 1984); see Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Initial Decision at

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12/ In the past, the County has attempted to minimize the im-pact of Diablo Canyon because of its procedural posture.

Diablo Canyon's low power license had been suspended by the Commission in an enforcement. action. The case cited above con-sidered reinstatement of that license. While there clearly are procedural differences between Diablo Canyon and Shoreham the principle'for which Diablo Canyon stands applies here with equal force: The existence of adjudicatory hearings, even on significant, substantive issues, is not an absolute bar to licensing fuel loading and certain low' power testing -

activities.

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111-176(October 29,' 1984);(hereinafter " Initial <Decis' ion").

Thus,-

I Ec'onsistent'with Diablo Canyon, Phase Iland:II activities may;be:- ,

' conducted now regardless of1the Board's' decision on further A-47 ,

hearings.'

In1Diablo-Canyon,.the Commission also' considered. activities Ebeyond fuel' loading ~and pre-criticality testing.: Additional /ac-=

tivities were'not authorized because the-" serious and substantive

safety concerns relating to design quality assurance" which had led-to the license' suspension were still the subject of Appeal s Board hearings. 18 NRC at 1150. 'The clear lesson of Diablo Canyon is that-the decision.to permit _ plant operation in theiface-ofcongoing. hearings'must' rest on.the equities involved. 'Indeed, the Commission implied that its analysis of activities beyond fuel loading might well have been differentLif the Diablo-Canyon sus-per.sion .had been purely procedural or, as is the case here, a mat-

- ter of clarifying uncertainties in the record. Id.

The Diablo Canyon approach is consistent with action taken in other cases involving remands for further proceedings.13/ The~ i 7

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, 13/ In cases involving remanded issues, the applicant has gen-

erally already received an operating license or_ construction permit by the time the Appeal Board or Commission renders its.

decision. Thus, the question is whether such license or permit i

should be revoked or suspended pending resolution of the re -

p . manded issues. There is no reason why the same analytical

(- principles should not apply here in deciding whether to issue a license in the face of a remand. This is particularly so since

. it is merelyz fortuitous that Commission authorization of'

- LILCO's Phases'I and II license has been delayed over two I' months.

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c testJfor whether authorized: activities'should be permitted during l consideration of the. remand has three: elements. First,:the '

gravity of.the questions-being litigated must'be considered.

-Consumers =-Power'Co. (Midland Plant,. Units 1:and 2), ALAB-458,.7 i NRC-155,-159 (1978); rsee Diablo= Canyon, 18 NRC at 1150. .Second,- u

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the Board should undertakela'" traditional balancing of. equities."

<Public Service Co. of New Hampshire.(Seabrook Station,. Units 1 and 2), CLI-77-8,R5-NRC 503, 5211(1977); Midland,- 7 NRC-at 169. And'

-third, consideration must be given'to any likely prejudice to fur .

'ther decisions that might be called for by the remand. Seabrook,.-

5 NRC at 521;' Midland, 7 NRC at 173. Application of this test to Shoreham: dictates that the Board should authorize fuel load and low power testing for Shoreham even if hearings on USI.A-47 are i held.

The matters remanded on USI A-47: do not present serious and substantive questions concerning the safety of Shoreham. As al- ,

ready noted, Phase I and Phase II activities present essentially no risk to the public health and safety even assuming an accident g:

, occurs. For operation beyond Phases I and II, the remanded ques-tions on A-47.present no real safety concarn. The Appeal Board found that with respect to USI A-47, "there has been no showing of  ;

a ' discerned safety problem'". ALAB-788 at 57. (Footnote omit-1 ted). In fact, the Appeal Board noted that the record reflected that the NRC Staff knew of no specific control system failures I

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- which would lead to undue; risk to.the public, that,the Staff be.

-lieved there'was a' low probabilityLof any control system failure

, consequences.more1seriousLthan.already. analyzed, and that the

" Staff had concluded that'.the ultimate resolution.of A-47 would have no-significance for.Shoreham. ALAB-788 at 57-59. Moreover,

this Licensing Board:found'that control systems interactions'had been. accounted-for in the~ design process for Shoreham. See, e.g.,

LBP-83-57, unpublished Findings of Fact J-46 to -53, J-86 to -89.

None of these findings was' overturned on appeal. Rather, the

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Appeal Board merely found the record below incomplete. Since the Staff had required confirmatory studies before finally resolving A-47 for'Shoreham, the Appeal Board believed it appropriate to in--

clude the results of those studies in the adjudicatory record.

ALAB-788 at 57-59. Nowhere is there any evidence or suggestion that any safety problem exists.for Shoreham. Thus, this factor favors che issuance of a low power license -for Shoreham.14/

A consideration of the equities involved also favors issuing j a low power license now. In its recent decision, the Low Power Licensing Board had occasion to consider the equities associated 14/ That LILCO is only seeking a low power license also weighs in favor of a finding of limited safety significance. The de-gree of potential danger to the public health and safety is substantially less at low power than at full power. See Ini-tial Decision at 77 (Finding 23). As explainec in more detail ,

below,' numerous recently licensed plants have been permitted to operate at full power without having completed the studies in question here.

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- withlimmediate' operation of Shoreham versus further delay. Many Hof those. considerations are pertinent here. The Low Power:

. Licensing-Board found that Shoreham is physically completed, that' further1 delay:in the plant would impose-financial hardships,.that

early operation could reduce. dependence on foreign oil and that LILCO has: borne.the burden of unusually heavy and protracted liti--

gation. . Initial Decision at 59-62. All of these factors weigh in favor of_ granting a low power license for Shoreham.

Important equitable considera'tions also include the facts that the studies in question have been completed, that they have been reviewed and approved'by the NRC Staff, and that Suffolk-County has had the results of these-studies for over a year. Cer-tainly,.if these studies had revealed any significant safety.

deficiencies at Shoreham, any party wishing to challenge them could have, and should have,. raised the issues in a timely fashion. Parties to this proceeding have not been reluctant to-move to reopen the record in the past where they believed-important' safety concerns existed.

Another equity favoring issuance of a low power license is t'

the NRC's established practice of licensing plants without i requiring completion of the two studies in question. The control systems and high energy line break studies performed by LILCO to resolve USI A-47.are in the nature of confirmatory studies.15/

J

- 15/ Unlike USI's in which'a specific concern has been identi-fied,.the purpose of USI A-47 is to ensure that existing regu-(footnote continued)

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Thus, over the last two years, at least five other plants'that have been required to perform the same.two studies have not had to do'so prior to fuel load. For' example, the operating license for Susquehanna 2 issued on March 23, 1984 included a license condi-tion mandating resolution of-the multiple control system failure.

and high energy'line break issues prior to exceeding 5% power.ls/.

The licenses for WPPSS 2, Susquehanna 1, Grand Gulf and La Salle 1 all included similar license conditions, except that resolution was not required until: prior to startup following' the first refueling outage.12/ Consequently,. consistent with the Commis-sion's practice at other plants, fuel load need not be delayed pending any hearings on the results of the studies.

(footnote continued) latory criteria. address potential control systems interactions.

Tr. 7436-37 (Rossi); Staff Ex. 2A (SER), at B-15; Spies et'al.,

ff. Tr. 6357, at 44-45; see Tr. 6504, 7436-37, 7455-56 (Rossi).

1s/ The Susquehanna 2 operating license, NPF-22, issued March 23, 1984, requires resolution of these issues prior to extend-ing 5% of power in 1 2.C(10)(a) and (b) (See Attachment 16).

12/ The following four operating licenses require resolution of these issues prior to completion of the first refueling out-age:

1. WPPSS 2, OL NPF-21 (December 20, 1983), at 1 2.C(22)(b) and (c) (see Attachment 17);

2. Susquehanna 1, OL NPF-14 (July 17, 1982), at 1 2.C(25)(a) and (b) (see Attachment 18);

3. Grand Gulf, OL NPF-13 (July 16, 1982), at 1 2.C(25), (26)

(see Attachment 19);

l '4. LaSalle 1, OL NPF-11 (April 17, 1982), at i 2.C(19)(a) and

. (b) (see Attachment 20).

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In short, a balancing of the. equities weighs' heavily in favor

- Lof issuing a license to conduct low power testing even if further-hearings are conducted on USI_A-47.

Finally, issuance of-a low power license would not prejudice future resolution of the USI A-47 issue. -As'the Commission'empha-sized'in Diablo Canyon, limited authorizations to conduct op-erations in no way prejudice future decisions. 18 NRC at 1149.

If review of the USI A-47 studies leads to the conclusion that further analysis is warranted, such analysis is not prejudiced by the issuance of a low power license. Similarly, if the studies indicate design changes are warranted to reduce the risk from cer- ,

tain control system interactions,. low power testing can be stopped and the modifications made. Certainly, the risk of prejudice _is no different in the case of Shoreham than for any other plant now operating while A-47 remains generically unresolved. Indeed, LILCO is in a much better position because it has completed the required studies whereas other plants were not required to com-plete them until as late as the first refueling outage. Thus, fu-ture resolution of USI A-47 for Shoreham will not be prejudiced by.

permitting LILCO to conduct low power testing now.

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CONCLUSION

'As' demonstrated above, each of the' minor issues remanded.by the Appeal Boar'd in'ALAB-788 has been? substantively resolved and the Licensing Board should; dismiss them. In any event, if the Board. decides.to conduct-further proceedings on any issue, those proceedings-should not delay issuance of a low power license for.

-Shoreham.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY f

s Dorfald P. Irwin Anthony F. Earley, Jr.

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 14, 1984 i

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s LILCO, November 14, 1984

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .g p",15 O 'I2 Before the Atomi'c Safety and Licensing Board i" In the Matter of )

)

LONG ISLAND LIGHTING OOMPANY ) Docket No. 50-322-OL

)

(Shoreham Nuclear Power Station, )

Unit 1) )-

ATTACHMENTS TO LILCO'S REPORT ON REMAND ISSUES PURSUANT TO LICENSING BOARD'S NOVEMBER 5,~1984 ORDER

1. . Affidavit of Edward G. Greenman in Response to ALAB-788, November 7~, 1984.

2. Letter, Bernard M. Bordenick to Attached Service List, August 7, 1984, attaching Memorandum for Edward Reis, Assistant:

Chief Hearing Counsel, from A. Schwencer, Chief, Licensing Branch #2, July 30, 1984 and other documents.

3. _SNRC-911, J. L. Smith (LILCO) to Harold R. Denton (NRC), June 24, 1983, with attachments.

4. SER Supplement 7 (September 1984), 1 3.11 (pages 3-6 10).

5. Affidavit of Robert G. LaGrange in Response to ALAB-788, November 13, 1984.

6. SNRC-761, J. L.: Smith (LILCO) to Harold R. Denton (NRC),

August-27, 1982, with attachment.

7. Letter, A. Schwencer (NRC) to M. S. Pollock (LILCO), November 24, 1982, with attachment.

8. SNRC-872, J. L. Smith (LILCO) to Harold R. Denton (NRC),

April 22, 1983.

9. SNRC-905, J. L. Smith (LILCO) to Harold R. Denton (NRC), June-20, 1983, with attachment.

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10. SER Supplement 4, $$ 7.5, 7.7.1, 7.7.2 (September 1983)

11. SNRC-786,-J. L. Smith-(LILCO) to Harold R. Denton (NRC),

-November 8, 1982 attachment omitted because of bulk.

12. Letter, A. Schwencer (NRC) to M. S. Pollock (LILCO), January.

24,.1983.

13. SNRC-887, J. L. Smith (LILCO) to Harold R. Denton (NRC),-May 11, 1983.

14. ' Affidavit of-Andrew J. ~ Szukiewicz in Response to ALAB-788, November ~13, 1984.

15. Affidavit of Jerry L. Mauck in Response to ALAB-788,. November 13, 1984.

16. Operating License.NPF-22 (Susquehanna 2), March 23, 1984, excerpt.

17. Operating License NPF-21 (WPPSS 2), December 20, 1983, excerpt.

18. Operating License NPF-14 (Susquehanna 1), July 17, 1982, excerpt.

19. Operating License NPF-13 (Grand Gulf), June 16, 1982, excerpt.

20. Operating License NPF-11 (LaSalle 1), April 17, 1982, excerpt.

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LILCO, November 14, 1984

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UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '04 f3/15 ' A9:12 l

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Before the Atomic Safety and Licensing Boa 5d- I i

i In the Matter of ) )

) i LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL l

)

(Shoreham Nuclear Power Station, )

' Unit 1) )

l N

ATTACHMENTS TO LILCO'S REPORT ON REMAND ISSUES PURSUANT TO LICENSING BOARD'S NOVEMBER 5, 1984 ORDER

1. Affidavit of Edward G. Greenman in Response.to ALAB-788, November 7, 1984. 4

2. Letter, Bernard M. Bordenick to Attached Service List, August

'7,.1984,. attaching Memorandum for Edward Reis, Assistant Chief Hearing Counsel, from A. Schwencer, Chief, Licensing Branch #2, July 30, 1984 and other documents.

3. SNRC-911, J. L. Smith (LILCO) to Harold R. Denton (NRC), June

24. 1983, with attachments.

4. SER Supplement 7 (September 1984), 1 3.11 (pages 3-6'-3-10).

5. Affidavit of Robert G. LaGrange in Response to ALAB-788, November 13, 1984.

6. SNRC-761, J. L. Smith (LILCO) to Harold R. Denton (NRC),

August 27, 1982, with attachment.

7. Letter, A. Schwencer (NRC) to M. S. Pollock (LILCO), November 24, 1982, with attachment.

8. 'SNRC-8h2, J. L. Smith (LILCO) to Harold R. Deaton (NRC),

April 22, 1983.

9. SNRC-905, J. L. Smith (LILCO) to Harold R. Denton (NRC), June 20, 1983, with attachment.

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, 1 410. SER Supplement 4, $$ 7.5, 7.7.1, 7.7.2 (September 1983)

11. SNRC-786, J. L. Smith (LILCO) to. Harold R. Denton (NRC),

November 8, 1982. attachment omitted because of bulk.

12. Letter, A. Schwencer (NRC) to M. S. Pollock (LILCO), January ,

R24, 1983.

.13. .SNRC-887, J. L.. Smith (LILCO) to Harold R. Denton (NRC), May 11, 1983.

14. Affidavit of AndrewLJ. Szukiewicz in Response to-ALAB-788, November 13, 1984.

15. ' Affidavit of Jerry L. Mauck in Response to ALAB-788, November 13, 1984.

16. Operating License NPF-22 (Susquehanna 2), March 23, 1984, excerpt.

17. Operating License NPF-21 (WPPSS 2), December 20, 1983, excerpt.

18. -operating License NPF-14 (Susquehanna 1), July 17, 1982, excerpt.

19. Operating License NPF-13 (Grand Gulf), June 16,.1982, excerpt.

20. Operating License NPF-11 (LaSalle 1), April 17, 1982, excerpt.

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