ML20111C540
| ML20111C540 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/12/1985 |
| From: | Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| References | |
| CON-#185-025, CON-#185-25 ALAB-800, OL-4, NUDOCS 8503150450 | |
| Download: ML20111C540 (3) | |
Text
f ,% .. ,e +;; .[- ..
l i
1 M '
Di -
.N. . nw u .
March'1M.N85
[f" Ei :
sh,eu"t .:-Ag' l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s..
Before the Atomic Safety and Licensing Board DOCKET MU415CR 60 '.-M,,D
) PROD. & IfflL FA0.. _ _ = - ad In the Matter of s () L _
LONG ISLAND LIGHTING COMPANY ) Do et No. 50-32 OL-5
) (Low wer Se uritp emand (Shoreham Nuclear Power Station, )
Unit 1) )
)
SUFFOLK COUNTY AND STATE OF NEW YORK MEMORANDUM IN RESPONSE TO ISSUES RAISED IN ASLB ORDER DATED MARCH 5, 1985 I. INTRODUCTION A. Background On October 29, 1984, this Board granted LILCO's request for an exemption from the requirements of General Design Crite-rion ("GDC") 17 to enable LILCO to conduct low power testing of Shoreham at up to five percent of rated power.l_/ On appeal by Suffolk County and the State of New York, the Appeal Board disagreed with this Board's disposition of Intervenors' pro-posed contentions concerning security issues raised by LILCO's l_/ LBP-84-45, 20 NRC 1343 (October 29, 1984).
8503150450 850312 PDR ADOCK 05000322 Q PDR u
l u __
~
1 e
e exemption request, reversed the Board's October 29 decision, vacated the low power testing authorization, and remanded the security issues for further proceedings. ALAB-800, at 20.
Since remand of the security issues, this Board has held two telephone conference calls with the parties;2/ in addition, on February 28, 1985, the Board conducted a conference of coun-sel.to discuss the Appeal Board's remand. Most recently, by Order dated March 5, 1985,3/ the Board directed the parties to brief security issues pertaining to the Appeal Board's remand.
Pursuant to the Board's March 5 Order, Suffolk County and New York State submit this Memorandum.
In its March 5 Order, the Board suggested that, "[i]n ad-dition to awaiting the outcome of the TDI litigation before the Brenner Board," LILCO might choose among five options on re-mand. Those options, as drafted by the Board, are as follows:
(1) Show compliance with Part 73 as to the emergency diesels ("EMD's") and the gas turbine ("GT").
(2) Seek an exemption from Part 73 as to the GT and/or the EMD's.
2/ Telephone conference calls were held on February 25 and March 5, 1985.
3/ Threshold Safeguards Questions (hereinafter, " March 5 Order"), dated March 5, 1985.
1
(3) Rely on the earlier Part 50 reliability finding.for the-EMD-GT unitary system, but rely on EMD's alone for Part 73 safeguards compliance.
i (4) Rely solely on the EMD's for Part 50 and Part 73 purposes.
l (5) Show compliance with Part 73 as to the EMD's; proceed under 73.55(a), fourth sen-
- tence, to show "high assurance," short of full compliance, as to the GT.
, March 5 Order, at 1.
The March 5 Order also directed the parties to brief spe-cific questions regarding the Appeal Board's remand. These questions are:
- 1. The Applicants propose to proceed under
- option 5, which.they term a " compliance" proceeding. (Tr. 3139-41) Comment on the
! legality of this option, with particular reference to the language of 73.55(a), any pertinent " legislative" history, compati-j bility or incompatibility with ALAB-800 (particularly the carry-over sentence on pp. 19-20), and any relevant practical or i policy factors. Compare 10 CFR 50.47(c)(1).
- 2. The County argues that if any " vital equipment" (e.g. the GT) is not in full compliance with Part 73, LILCO must seek an exemption under section 73.5. (Tr.
3149-50) What purpose does the general language of section 73.5 serve, given the more. specific language in the fourth sen-tence of section 73.55(a)? Is the
[C]ounty's position compatible with ALAB-800? What practical or policy consid-erations are relevant?
I a ,- - e ~w , g -- - ,,
- 3. From the standpoint of what must be proved by the parties and found by the Beard, what practical difference would it make whether the Applicants' proposal were addressed under sections 73.5, 73.55(a), or both[?] To what extent, if any, would the Commission's decision in CLI 84--8 apply?
- 4. Are the safeguards risks associated with low-power operation (as distinguished from safety risks) smaller than full power risks, and, if so, does that have the ef-fect of lowering 73.55 safeguards standards
. for low power? Note the carry-over sen-tence on pp. 19-20 of ALAB-800. Are the nature and extent of low-power safeguards risks litigable in this case?
- 5. The Board intends to proceed on the basis of contentions -- under the customary specificity and basis rules applicable to contentions -- whether or not, strictly speaking, contentions are required in this context. We see contentions (or some func-tional equivalent thereof) as necessary to focus the issues. Two matters can be usefully addressed at this point: (1) The parties should identify specific informa-tion that is pertinent to the formulation of contentions. Is that information now available? If not now, when? In this con-nection, consider the Appeal Board's good
" good cause" test from ALAB-687, Duke Power Co. (Catawba Station) 16 NRC 460, 468 T1982). (2) In addition to specificity and basis, should the proponent of a contention be required to show a relationship between its contention and safeguards issues presented by low-power operations? The Board will address the contentions subject
, in more detail after we have addressed the threshold questions.
t
1 March 5 Order, at 2-4. Suffolk County and New York State ad-dress these questions in Sections II.A-II.E, infra.
At the outset, however, it is important to discuss ALAB-800, particularly since this Board is bound to apply ALAB-800 in this remand proceeding and because ALAB-800 pro-vides answers to many of the questions the Board has raised.
B. The Appeal Board's Decision The Appeal Board began its analysis by examining the defi-nition of vital equipment under Part 73 of the Commission's regulations. That definition is as follows:
" Vital equipment" means any equipment [or]
system . . . the failure [or] destruction
. . . of which could directly or indirectly endanger the public health and safety by exposure to radiation. Equipment or sys-tems which would be required to function to protect public health and safety following such failure [or] destruction . . . are also considered to be vital.
10 CFR }73.2(i).
The Appeal Board ruled that it is the function, not the type or location of the equipment required to fulfill the func-tion, which determines whether equipment is vital. Given the function of the 20 megawatt (MW) gas turbine and the EMDs under 5-
LILCO's Part 50 exemption request, the Appeal Board found that this equipment is vital equipment under Part 73:
The gas turbine and the temporary diesels . . . are to be considered vital equipment if they are necessary to protect the public health and safety.
We believe they are . . . [b3ecause [the]
findings [of the Licensing Board] establish that this equipment is essential to the protection of the public from exposure to radiation in the event of a loss-of-coolant accident (LOCA) together with a loss of offsite power . . . .
ALAB-800, at 13-14 (emphasis added). Indeed, in rejecting LILCO's argument that approval of its Part 50 exemption request should implicitly include an exemption from the requirements of Part 73, the Appeal Board reaffirmed this holding:
[B]ecause a loss of all AC power during a LOCA could result in core damage and, thus, harm the public if AC power is not restored within a certain time period, we do not believe that grant of an exemption from the Part 50 design requirements should automat-ically relieve the applicant of the securi-ty requirements contained in Part 73.
Given the critical nature of the gas turbine and the temporary diesels to the safety of the public, security must be assured.
Id., at 17 (emphasis added).d/
4/ The Appeal Board concluded that this Board's error in excluding certain contentions because the emergency power (Footnote cont'd next page)
O
'Mius , there can be no doubt that under ALAB-800, both the gas turbine and the EMD diesels are vital equipment, as defined by 10 CFR $73.2(i). This is a key holding of the Appeal ~
Board's decision. Moreover, vital _ equipment must be protected in accordance with the specific requirements of 10 CFR
$73.55(b)-(h) or be otherwise protected in a manner equivalent to the level of protection achieved when Section 73.55(b)-(h) requirements are fully satisfied. If vital equipment protec-tion is not provided, there can be no compliance _with 10 CFR
$73.55.
The Appeal Board did not rule that LILCO must comply with all requirements of Section 73.55 as a precondition to low power operation. Rather, at the end of its opinion, the Appeal Board commented that if LILCO could not comply with Section 73.55, LILCO still might be able to obtain a low power authori-zation on the basis of a security exemption under 10 CFR $73.5.
(Footnote cont'd from previous page) supplies were not deemed " vital equipment" required "reex-amination of these contentions." ALAB-800, at 17-18. In addition, the Appeal Board ruled that this Board's conclu-sions regarding the lack of adequate specificity and nexus to changes in LILCO's security plan " flowing from the use of the substitute power sources" should be reevaluated in.
light of the Appeal Board's determination that "such sources are vital equipment."- Id., at 18 (emphasis added).
O
ALAB-800, at 17. The Appeal Board then described some factors that might need to be considered if this were an exemption pro-ceeding as opposed to a compliance proceeding. Id., at 19-20.
These factors are discussed below.
t II. RESPONSE TO BOARD QUESTIONS This Board expressed the view that options 1, 3 and 4 are not available for either practical or legal reasons. Suffolk
! County and New York State agree as regards options 3 and 4.
l Thus, at this time, the County and State will not address op-tions 3 or 4. Should either the NRC Staff or LILCO, however,
.i attempt to rely on options 3 and/or 4 in their March 12 fil-
- ings, the County and State will address these options in their i
! March 15 reply memorandum. As will be made clear in Section 1
i II.A below, the County and State view option 1 as being essen-tially equivalent to option 5, since options 1 and 5 are both premised on demonstrating compliance with, as opposed to an ex-emption from, Part 73's requirements.
1 A. The " Compliance" Option -- Board Question No. 1 l In its first question, the Board has directed the parties j to address option 5, the scenario in which LILCO attempts to i demonr.trate that the level of protection for the EMDs and gas.
i
]
1 i
, -. - . _ , , - , .,. , , ~ . - . . . , - , _ , , - - , - - , .
a turbine complies fully with Section 73.55. LILCO has termed this a " compliance" proceeding. (Tr. 3139-41). To respond to this question, and also to explain why options 5 and 1 are es-sentially identical, it is important to assess what LILCO would need to establish regarding the EMDs and the gas turbine in order to demonstrate compliance with 10 CFR $73.55. Put anoth-er way, given the unequivocal holding of the Appeal Board that both the gas turbine and the EMDs constitute vital equipment, what proof would LILCO need to adduce in order to comply with
.l Section 73.55?
There are two methods by which LILCO could attempt to dem-onstrate compliance with 10 CFR $73.55. First, LILCO could at-tempt to demonstrate that the detailed requirements of 10 CFR
$73.55(b)-(h) are satisfied for the gas turbine, the EMDs, and their associated equipment. If such a demonstration were made, then LILCO would be in compliance with 10 CFR $73.55, including the "high assurance" performance standard of Section 73.55(a).
See 10 CFR $73.55(a) (third sentence); Pacific Gas & Electric
- Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-653, 16 NRC 55, 59-60 (1981). The County and State under-stand that LILCO is prepared to attempt to make such a showing for the EMDs and their associated equipment.
__--_-___.______.-..____._.____m.__.m_
As to the 20 MW gas turbine and its associated equipment, LILCO does not intend to try to satisfy the "high assurance" criterion of Section 73.55(a) by showing compliance with 10 CFR
$73.55(b)-(h). Rather, LILCO has indicated that it would at-tempt to demonstrate Part 73 compliance as pertains to the gas turbine under the tourth sentence of Section 73.55(a), which states:
The commission may authorize an applicant or licensee to provide measures for protec-tion against radiological sabotage other than those required by this section if the applicant or licensee demonstrates that the measures have the same high assurance ob-jective as specified in this paragraph and that the overall level of system perfor-mance provides protection against radiological sabotage equivalent to that which would be provided by paragraphs (b) through (h) of this section and meets the general performance requirements of this section.
10 CFR $73.55(a) (emphasis added). Under this approach to showing Part 73 compliance, the specific requirements of Sec-tion 73.55(b)-(h) do not need to be satisfied. However, the Board would still need to find the level of protection afforded the gas turbine and its associated equipment to be equivalent to the protection which would have been afforded if subparts (b)-(h) of Section 73.55 had been satisfied.5/
l l
S/ In option 5, the Board implies that satisfying the fourth :
sentence of Section 73.55(a) can result in h!gh assurance I (Footnote cont'd next page)
t The Board has requested "[c3omment on the legality of [the compliance] option." March 5 Order, at 2-3. The County and i State submit that options 1 and 5 are legal, because the regu-lations clearly do provide two means of showing Part 73 compli-ance. LILCO, in other words, can legally attempt to show com-pliance with Part 73; it is LILCO's choice to make.
1
- It is not enough. however, for this Board just to declare that a particular option is " legal." Rather, so that all par-i ties have clear guidance on this matter, it is essential that the Board specify clearly just what the " compliance" option i means and the kind of proof that would be required before the Board could possibly find in LILCO's favor on the compliance option. The County and State believe this guidance is all the more essential in this instance because, based upon LILCO's own statements, it appears clear that LILCO does not intend even to attempt to provide sufficient protection to the gas turbino and its associated equipment such that compliance could even be a i debatable issue.
(Footnote cont'd from previous page)
! protection, even though less than full compliance with >
Part 73 is achieved. This is not accurate. Rather, as i described in the text, and in the regulatory history,
) infra, there are alternativo methods for achieving Part 73 compliance. Absent full compliance, however, a license
- must be denied unless an exemption is granted.
- 11 1
I
1 The relatively straightforward compliance option -- what LILCO has called its " cookbook" approach -- needs no further explanation. The County and State do not believe that LILCO j
can demonstrate that the level of protection for the EMDs is consistent with the requirements of 10 CFR $73.55(b)-(h). How-ever, that is essentially a factual issue (and the details would necessarily be safeguarded) which cannot be resolved as a matter of threshold legal briefing.
Protection for the gas turbine, however, is a different matter. The standard LILCO would need to satisfy is clears if the gas turbine is not protected in accordance with Section 73.55(b)-(h), LILCO can demonstrate compliance with Part 73 only if the measures which are instituted to protect the gas I turbine are such "that the overall level of system performance '
- provides protection against radiological sabotage equivalent to that which would be provided by paragraphs (b) through (h) of
- [Section 73.55] . . . .
10 CFR $73.55(a) (emphasis added).
LILCO has not revealed to the Board and parties precisely what measures it might suggest to protect the gas turbine and its associated equipment. However, LILCO has conceded that whatever security arrangements are made for the gas turbine, the arrangements will not be such so as to protect the gas i
l i
t l
I turbine and its associated equipment to levels consistent with !
l the gas turbine's " vital" equipment status.6/ Indeed, LILCO has made clear that even if it does provide some protection for the gas turbine, the level of protection will still be far less than that provided for the EMDs. In other words, by LILCO's own admission, whatever arrangements are made for the gas tur-bine, if any, those arrangements will not be equivalent to the security arrangements required by Section 73.55(b)-(h): rather, the gas turbine will have a decidedly lesser level of protec-tion than the EMDs and other vital equipment at Shoreham.
Since the gas turbine and its associated equipment will be accorded a lesser level of protection than would be provided by compliance with 10 CFR $73.55(b)-(h), LILCO, as a matter of law, cannot prevail under the fourth sentence of Section 73.55(a) in an attempt to show that there is "high assurance" of adequate protection for the gas turbine. This is because the fourth sentence of Section 73.55(a) requires an equivalent level of protection a lesser level of protection, as proposed by LILCO, simply does not comply with Section 73.55.
1 6/ See e.g., LILCO's Suggestions for Threshold Driefing of Issues, March 4, 1985, at 3, n.1.
13 -
The " regulatory" history of the fourth sentence of Section 73.55(a) underscores the plain words of the regulation: that l
if a licensee does not satisfy subparts (b)-(h) of Section 73.55, it may still be found to comply with Part 73 only if the measures which are provided provide an equivalent level of pro-tection. For example, in 1977, when the Commission adopted major revisions to Part 73, including the addition of what is today the fourth sentence of Section 73.55(a), it stated:
Compliance with the detailed requirements
[of Section 73.55(b)-(h)] should essential-ly satisfy the general performance require-ments stated in the rule in $73.55(a).
However, there may be instances for some plants where additional requirements will have to be imposed so that the general per-formance requirements can be met. In these cases, such requirements will be specified by the Commission's staff. In any event all licensees subject to the rule must com-ply with the general performance require-ments. Nothing herein should be construed as precluding licensees from providing the Commission's staff with suggested other equivalent detailed measures that the i licensee determines to be necessary to meet the general performance requirements.
42 Fed. Reg. 10,836-37 (1977) (emphasis added).
Similarly, in SECY-76-242C, October 7, 1976, which later formed a substantial basis for the final rule,7/ it was stated:
7/ See Diablo Canyon, supra, 16 NRC at 69, wherein the Appeal Board relied on SECY-76-242C for interpretation of Part 73.
l
i .
i l
l l The use of the general performance state-
[
ment also provides flexibility in imple-menting the specific components of the given security plan without the necessity of obtaining exemptions to specific requirements. Thus, a specific requirement in the regulation does not have to be com-plied with if it can be shown that an equivalent level of protection can be attained in another way. There are some specific requirements in the proposed amendments which cannot be met at some present reactors although other means can
. be used to attain equivalent protection.
There is general agreement that the re- ,
quirements set forth in $73.55 would be basic to a security framework should it be necessary to meet a threat with more vio-lent attributes.
SECY-76-242C, at 4 (emphasis added).
Finally, in Diablo Canyon, the Appeal Board reached the same conclusion about methods of compliance with Section 73.55.
After describing the " normal" compliance situation, i.e., sat-isfying 10 CFR $73.55(b)-(h), the Board stated: "[T]he regula-tions permit the use of security measures other than those pro-cisely meeting the requirements of Section 73.55(b)-(h) if such measures provido equivalent protection." 16 NRC at 59-60 (om-phasis added; citations omitted).
The foregoing regulatory history and the Diablo decision j are significant. No exemption is necessary so long as LILCO l
( demonstrates that the lovel of protection for the alternate AC I
l
( - -
power system either: (1) meets Section 73.55(b)-(h); or (2) provides a level of protection which is equivalent to that which would be achieved if the Section 73.55(b)-(h) require-ments were satisfied. If, however, LILCO cannot meet (1) or (2), then there is no Part 73 compliance and an exemption from the requirements of Part 73 must be sought.
The above discussion of Part 73's requirements is entirely consistent with ALAB-800. As established by the Appeal Board, the gas turbine and the EMDs are vital equipment. Therefore, to comply with Part 73, and to be consistent with ALAB,-800, this equipment must be protected in accordance with Section 73.55(b)-(h) or there must be security arrangements which pro-vido protection which is fully equivalent thereto.
The so-called " carry-over" sentence on pages 19-20 of ALAB-800 la not portinent to this " compliance" option. That sentenco8/ concerns how this Board might proceed if the level of protection proposed by LILCO for the gas turbine and EMDs is 8/ "As an altornative, the Board might nood to considor whether a level of protection of the temporary diosolo and the gas turbine is adequate to satisfy the concerns for physical security of this equipment for low power testing, even though that lovel may be somewhat less than normally provided to vital equipment." ALAB-800, at 19-20 (foot-note omitted).
16 -
r less than that normally provided to vital equipment. However, ,
I as is clear from Section 73.55(a) and its regulatory history, l if the level of protection is less, the applicant must proceed via an exemption; there is no compliance. Thus, the " carry-l over" sentence of the Appeal Board is pertinent only in an ex-emption context.
4
. One final comment needs to be made with respect to the Board's first question. The Board inquires whether 10 CFR
$50.47(c)(1) provides a meaningful comparison that might be useful in analyzing Part 73 compliance. March 5 Order, at 3.
It does not. Section 50.47(c)(1) provides that a licensee's failure to meet the 16 planning standards for onsite and j offsite emergency plans enumerated in Section 50.47(b) may re-l ,
sult in the Commission declining to issue an operating license.
l l However, the applicant will have an opportunity to demonstrate to the satisfaction of the Com-mission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or l
that there are other compelling reasons to permit plant operation.
Thus, Section 50.47(c)(1) expressly provides that a 11-consee's emergency plans can differ from the regulatory l
l i
(
requirements, but still be found adequate. Section 73.55(a),
however, requires that if a licensee's security arrangements i
differ from the requirements of paragraphs (b)-(h), the alter-4 native arrangements must nonetheless be " equivalent to that which would be provided by paragraphs (b) through (h) . . . .
(Emphasis added).
~
- By definition, therefore, Section 50.47(c)(1) cannot be read to provide the basis (via some -
i unspecified comparison) for somehow finding that LILCO satisfies Part 73, even though the Section 73.55(b)-(h) re-quirements are not met and there is no equivalent level of pro-tection against radiological sabotage.
j B. The Exemption Option -- Board Question No. 2 ;
i I '
j The Board questions the purpose of the general language of
- Section 73.5, given the more specific language in the fourth 1 ,
l sentence of Section 73.55(a). The answer is clear. The pur- l 1
- pose of Section 73.5 is to provide a regulatory basis for 4
granting exemptions from the requirements of Part 73. There-i fore, the language of Section 73.5 is necessarily broadt after
( all, the exemption authority which the Section conveys applies ,
I i to all regulatory requirements under Part 73, and in granting
]
j exemptions from regulatory requirements, the necessary inquiry I i j is properly much broader than when the only issue is l l
1 - 10 -
1 1
}
i ;
- - _ _ _ _ - - - - - - --_a_ _a_____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ ___
O compliance / noncompliance with a requirement. The fourth sentence of Section 73.55(a), on the other hand, addresses one particular regulatory provision -- providing a mechanism for i
demonstrating compliance with Section 73.55 by means other than !
specifically satisfying each requirement of paragraphs (b)-(h) i of Section 73.55.
Thus, there can be no doubt that the Board's inquiry into LILCO's proposed security arrangements is necessarily broader .
under Section 73.5 than under the fourth sentence of Section i 73.55(a). Rather than simply determining whether LILCO's ar- ,
l rangements for protecting the EMDs and the gas turbine, and their associated equipment, are " equivalent to" the protection i afforded by strict compliance with Section 73.55 (b)-(h), the i Board under a Section 73.5 exemption request must determine whether the request is authorized by law, whether the request, l if granted, will ondanger life or property or the common de-fense and security, and whether the request is otherwise in the public interest.
There is also a strong practical reason as to why the broader language of Section 73.5 is significant. If L'.LCO does not comply with Section 73.55, this means that the NRC is being asked to permit operation despite the uncontradicted fact that ;
i _ _ _ _ - _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . . _ - _ . _ _
j the plant is more vulnerable to sabotage than would normally be permitted.9/ The NRC would need to consider carefully how au-thorizing operation under those circumstances could possibly be in the public interest or what exigent circumstances could l
weigh in favor of exposing suffolk County residents to in-4
~
creased threat of the design basis attack. Indeed, the greater
. vulnerability of the plant to attack would raise concerns as to I
whether the authorization of operation under these circumstanc-es was not itself an invitation to design basis attackers or l
j others to attempt such an attack.
l t
! In short, there is a clear purpose for the broad language i of Section 73.5 versus the more specific language of the fourth
) sentence of Section 73.55(a): where an exemption is sought i
! from safeguards requirements, a broad and searching inquiry of i
!l all pertinent regulatory, policy, and public safety factors is i
essential.
i i
j Finally, any doubt that the position of the County and State is compatible with ALAD-800 is erased by the Appeal Board's statement at pages 19-20:
9/
The purpose of compliance with the Section 73.55 require- ;
- ments is to ensure "high assurance" confidence that ,
radiological sabotage will not be successful. See Diablo l If the Section~77.55 re-l' Canyon, supra, 16 NRC at 59-60.
I quirements are not satisfied, it means that there is less i protection and thus greater vulnerability to sabotage.
l l l 1
)
j l
! [T]he Board might need to consider whether a level of protection of the temporary die-sels and the gas turbine is adequate to i satisfy the concerns for physical security of this equipment for low power testing,
! even though that level may be somewhat less i
than normally provided to vital equipment.
1 This " low power" factor, raised by the Appeal Board for this J
Board's consideration, can perhaps be taken into account under an exemption request pursuant to Section 73.5. However, this l factor certainly cannot be considered in the context of a "com- t I
i j pliance" proceeding because there is no provision in 10 CFR
$73.55 or anywhere else in Part 73 which authorizes a lesser l
l 1
level of security protection at low power than at full power.
1
) Only one consideration is relevant to a proceeding brought i under Section 73.55(a)'s fourth sentences do the measures for protection against radiological sabotage, if different from l those specified under paragraphs (b)-(h), result in protection which is " equivalent to" the protection which would result from complying with the requirements of paragraphs (b)-(h)? In this l
]
- caso, the answer is "no."
C. Issues of Proof -- Board Question No. 3 ;
i l In its third question, the Doard questions the potential j differences in proof in procoodings brought'under Sections i 73.5, 73.55(a), or both. The County and Stato need only :
?
l 4
- I i
! i 4
1
briefly address this question since, in large part, the proof issue has been addressed in Sections II.A and II.B, above.
However, several observations are appropriate.
First, however the Board structures this remand proceed-ing, LILCO must carry the burden of proof. See, e.g., 10 CFR
$2.732. Second, the difference as to what LILCO will have to prove under Sections 73.5 and 73.55(a) is significant. In a Section 73.55 compliance proceeding, the proof will focus on whether the level of protection for the EMDs and the gas tur-bine and their respective associated equipment complies with Section 73.55(b)-(h) or is fully equivalent thereto. In a Sec-tion 73.5 proceeding, LILCO could attempt to persuade the NRC that operation should be permitted despite a lesser level of protection. The proof would necessarily be varied, covering
- issues likes how much less protection is provided by LILCO l than if full compliance with Section 73.55 were demonstrated (such proof would be important to an assessment of the degree of vulnerability created by the noncompliance) what special circumstances exist in the case, if any, which would merit the extraordinary action of allowing operation despite noncompliance with security requirementat what additional safe-guards measures might be undertaken which LILCO has failed to suggest (this would be relevant to an assessment whether the i
i
exemption request has been structured in a manner to make the f
noncompliance with the regulations as small as possible); and does the public interest favor the grant of this special re-lief?
The foregoing is only a short summary of how the issues of proof would differ dramatically depending upon whether this is an exemption or a compliance proceeding. These differences un-
- derscore the need for LILCO to choose whether it seeks to dem-i onstrate compliance or rather desires an exemption. LILCO should not be permitted to proceed on two fronts, however,
]
- since to do so would breed confusion and waste valuable re-J q sources of the Board and parties.
Third, the Commission's May 16, 1984 decision in CLI-84-8 would apply to the remand proceeding before this Board, al-
- though the proof to be adduced in the Part 73 context would be different from the proof required in a Part 50 context. In CLI-84-8, the Commission required LILCO, in addressing the de-terminations to be made under its request for an exemption from i
the requirements of Part 50, to include discussion of the "exi-l gent circumstances" relating to the exemption request and 4
! LILCO's basis for concluding that operation at low power would
} be "as safe as" operation would have been with a fully l
1 l
j ;
1 i
J qualified onsite electrical power system. The determinations necessary to LILCO's Part 50 exemption request, as set forth in i
10 CFR $50.12(a), are phrased in language identical to the de-terminations necessary for an exemption from Part 73's require- l ments, as set forth in Section 73.5. Thus, it is reasonable to require a similar showing in a Part 73 exemption proceeding
! in addition to demonstrating that the exemption request is au- i 1
thorized by law, will not endanger. life or property or the com-i l mon defense or security, and otherwise is in the public inter-
! est, LILCO must also describe the exigent circumstances which i
j it believes support Part 73 exemption relief and discuss why 1
operation of Shoreham with the alternate AC power system will meet the "as safe as" standard despite the lesser level of safeguards protection.
l i
D. The Riska Associated with LILCO's Proposed Security Arrangements -- Board Question No. 4 i l In its fourth question, the Board has requested the par-j ties to discuss "the safeguards risks asnociated with low-power 1
! operation (as distinguished from safety risks) . . . ." March l
l 5 Order, at 3. The County and State do not fully understand i
- what is meant by " safeguards risks," as distinguished from i " safety risks." However, we assume that " safeguards rinks" is i
{ the Board's way of referring to the design basis threat of i
radiological sabotage against which a licensee's security system must be planned. If so, it is clear that (1) " safe-guards risks" associated with low-power operation are not smaller than full power risks, and (2) Section 73.55's safe-guards standards are therefore not lowered for low-power operation.
J Under the Commission's regulations, the design basis l
- threat is a "given"; its probability of occurrence is irrele-vant for purposes of designing a licensee's security system.
See Diablo Canyon, supra, 16 NRC at 72. Similarly, for purpos-es of evaluating the adequacy of a security system in light of the malevolent threat stipulated by the regulations, there is no basis for finding this threat to be any less merely because a plant is not at full power.10/
10/ If anything, the " safeguards risks" of Shoreham low power operation are higher than would be expected at full power operation. This is because the alternate AC power system creates new vulnerabilities which would make Shoreham a more attractive target than under prior circumstances.
For example, when the TDI diesels were relied upon, the fuel for those diesels was in hardened, underground stor-age. The fuel for the alternate AC power system is essen-tially unprotected--a 1,000,000 gallon fuel tank outside the protected area and a fuel oil truck within the protected area. It takes no great knowledge of security i matters to make a judgment about which target--the TDI diesels versus the alternate AC power system--would be simpler to disable.
1 Thus, there is no justification for distinguishing between
" low-power safeguards risks" and " full-power safeguards risks."
As a result, there is no basis for litigating the nature and extent of " low-power safeguards risks" in the remand proceed-ing. The risk is defined by the regulations and LILCO's secu-rity system must be able to protect against that risk, irre-spective of the power level of the plant.
E. Isoues Relating to the Filing of Contentions in the Remand Proceeding -- Board Question No. 5 In its final question, the Board has advised the parties that it intends to proceed on the basis of contentions, whether or not contentions are strictly required. March 5 Order, at 4.
If LILCO chooses to attempt to prove compliance (options 1 and 5), the propriety of contentions is clear. However, if this is an exemption proceeding (option 2), the County and State reit-erate that contentions are not proper. In an exemption con-text, the first step is for LILCO to file an exemption applica-tion. Thereafter, there may be occasion for the Board to on-l sure that the issues are properly framed for trial, but the County and State have no obligation to file discrete conten-tions or meet any so-called specificity and basis requirements which are applicable to contentions. Rather, the standards for proof and trial are set by 10 CFR $73.5, and the inquiry is necessarily broad to cover those standards.
, ~ . . . . . _ . _ __ - _ _ _ . = _ _ - - _ _ _ ._ - _
5 m
Aside from the foregoing, the Board asked the parties to
- address several matters relating to specification of issues.
First, the Board has requested that specific information perti- ,
- nent to the formulation of contentions be identified, and the
, availability of such information be discussed. The County and I State submit that.this question, to a large extent, must be an-f swered by LILCO. The County and State have been given no op-portunity for discovery on matters relating-to LILCO's security i arrangements for low power operation.ll/ Nevertheless, the
{ county and State are aware of some limited facts.
I -
1
! For example, LILCO has advised the Board and parties of its proposed enhancements to the security for the EMDs. Howev-er, many important questions remain. Have the " enhancements" .
1, j proposed by LILCO been fully implemented, and are they effec-
^
j tive in achieving what LILCO has intended? What do some of the
) " enhancements" really mean?l2/ Are any other " enhancements" i
i 11/ The County and State had a site visit in May 1984. That (
l- was before any security enhancements for the~EMDs had even i been suggested. Thus, that visit was of no'use in ob-l taining detailed factual data regarding security matters.
j 12/ Without getting into safeguards data, we point out, for
- example, that some details regarding alarms are not set forth~ clearly enough in the Shoreham physical security i plan'to determine, without discovery, whether there is j compliance with 10 CFR $73.55(e).
i l '
f I
i i
o
i i
l proposed? With respect to the gas turbine, the County and State know very little. LILCO has stated that it is consid-ering security measures for the gas turbine, but thus far has provided no information to the Board and parties. Thus, as of this time, most information regarding LILCO's security arrange-
< ments for the EMDs and the gas turbine has not been made avail-able to the County and State.
Several things must occur before any meaningful progress can be made toward identifying issues in this proceeding.
First, LILCO must tell the Board and parties precisely what it plans to do from a security perspective with respect to both the EMDs and the gas turbine. Until that is done, little prog-ress can be made, and the Board and parties will be faced with a constantly moving target. Second, once LILCO provides this information, the County and State must have the opportunity for a detailed site visit and be given access to all data, including analyses and assessments, if any, which underlie the security provisiens LILCO has proposed.13/ Depending upon the adequacy of such data, the County and State may need to depose 13/ For example, the County and State w'uld need discovery of
-~
any analyset by LILCO of whether tht, addition of the alternate AC power system requires a greater number of armed responders than provided for under '
the existing Shoreham security plan.
28 -
certain LILCO personnel. Third, the NRC Staff must prepare its SER supplement on the new security arrangements, and the County and State will then need to discuss the SER with the Staff to understand the bases for any recommendations or conclusions.14/
Once the foregoing has occurred, the Board and parties should be in a position to define the issues which will be central to this proceeding, including the submission / revision of conten-tions if this remand proceeding is treated as a compliance pro-ceeding.
The Board apparently acknowledges the Appeal Board's " good cause" test in Duke Power Co. (Catawba Station), 16 NRC 460, 468 (1982). Under that test, a contention cannot be rejected as untimely if the information necessary to fashion an ade-quately particularized contention has not come into existence or is otherwise not available. The County and State submit that, under the present circumstances, there is no need to dis-cuss the standards for accepting / rejecting late-filed conten-tions. Clearly, given the history of LILCO's Part 50 exemption request and the rulings of this Board in denying the security contentions filed last August, any contention specifically 14/ The Staff's prior SER data are clearly not adequate, since they were premised on an erroneous interpretation of vital equipment requirements.
r -
I related to LILCO's security arrangements for the EMDs or the gas turbine or both will necessarily be timely. Moreover, until information necessary to the framing and refining of is-sues is made available by LILCO and until this Board has ruled on the threshold legal issues, there can be no claim that time-j liness even begins to enter the picture.
~ The Board also requested the parties' views on the ques- ,
I tion whether the proponent of a contention should be required i to show a relationship between its contention and safeguards issues presented by low-power operation. The County and State assume that the Board is asking whether any contention must be tied to LILCO's security arrangements for the EMDs and the gas turbine and their associated equipment. Several comments are in order. Each of the security issues raised by the County and State last summer was directly related to security deficien-cies/ vulnerabilities caused by the alternate AC power system. I 1
Thus, the nexus has been shown. However, this does not mean that only the security arrangements for the EMDs-and the gas turbine are subject to challenge. The County and State have previously alleged that the addition of the EMDs and the gas i
turbine at Shoreham requires changes in LILCO's security arrangments for the Shoreham plant and impacts LILCO's physical security plan in ways that must be taken into account by the 1
E l l
Board. The County and State continue to believe that this is the case and their contentions / issues would address such mat-ters.
Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788
- NBrown Herbert H.
7M L Lawrence Coe Lanpher Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County RLu G. hd>iu Fabian G. Palomino
(>yn)
Special Counsel to the Governor Executive Chamber, Room 229 State Capitol Albany, New York 12224 Attorney for Mario M. Cuomo Governor of the State of New York March 12, 1985 l
l l
1 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY )
) Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station, ) (Low Power)
Unit 1) )
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY AND STATE OF NEW YORK MEMORANDUM IN RESPONSE TO ISSUES RAISED IN ASLB ORDER DATED MARCH 5, 1985, have been served on the following this 12th day of March 1985 by U.S. Mail, first class, except as otherwise indicated.
- J ames L. Kelley, Chairman
- Bernard M. Bordenick, Esq.
Atomic Safety and Licensing Board Edwin Reis, Esq.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
- Judge Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Edward M. Barrett, Esq.
Washington, D.C. 20555 Long_ Island Lighting Company 250 Old Country Road
., * *
- Judge Elizabeth B. Johnson Mineola, New York 11501 Oak Ridge National Laboratory P.O. Box X, Building 3500 Honorable Peter F. Cohalan Oak Ridge, Tennessee 37830 Suffolk County Executive H. Lee Dennison Building Martin Bradley Ashare, Esq. Veterans Memorial Highway Sufffolk County Attorney Hauppauge, New York 11788 H. Lee Dennison Building Veterans Memorial Highway *
- Fabian G. Palomino, Esq.
Hauppauge, New York 11788 Special Counsel to the Governor Docketing and Service Branch Executive Chamber, Room 229 Office of the Secretary State Capitol U.S. Nuclear Regulatory Comm. Albany, New York 12224 Washington, D.C. 20555
e a
- W. Taylor Reveley, III, Esq. Mr. Brian McCaffrey Anthony F. Earley, Jr., Esq. Long Island Lighting Company Robert M. Rolfe, Esq. Shoreham Nuclear Power Station Hunton & Williams P.O. Box 618 P.O. Box 1535 North Country Road 707 East Main Street Wading River, New York 11792 Richmond, Virginia 23212 Jay Dunkleberger, Esq.
Mr. Martin Suubert New York State Energy Office c/o Congressman William Carney Agency Building 2 1113 Longworth House Office Bldg. Empire State Plaza Washington, D.C. 20515 Albany, New York 12223 James B. Dougherty, Esq. Stephen B. Latham, Esq.
3045 Porter Street, N.W. John F. Shea, Esq.
Washington, D.C. 20008 Twomey, Latham and Shea 33 West Second Street Riverhead, New York 11901 Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Date: March 12, 1985
- By Hand
- By Federal Express
- By Telecopy l
l
_ _ -- _