ML20112H550

Reply Brief Reaffirming 840905 Order & ASLB 841029 Initial Decision LBP-84-45,recommending Authorization of Low Power Testing Up to 5% Power W/O Completing Qualification of Onsite Diesel Generators.Certificate of Svc Encl

ML20112H550
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/14/1985
From:	Earley A HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#185-119 LBB-84-45, OL-4, NUDOCS 8501170186
Download: ML20112H550 (80)

Text

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LILCO, January 14, 1985 UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION "' :0 7 Before the Atomic Safety and Licensing Appeal Board In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

LONG ISLAND LIGHTING COMPANY'S REPLY BRIEF Hunton & Williams 707 East Main Street Richmond, Virginia 23219 DATED: January 14, 1985 l

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8501170186 850114 PDR ADOCK 05000322 O PDR TSo3

LILCO, January 14, 1985 l

UNITED STATES OF AMERICA ..

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NUCLEAR REGULATORY COMMISSION <

0:? :07 Before the Atomic Safety and Licensing Appeal Board In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

LONG ISLAND LIGHTING COMPANY'S REPLY BRIEF Hunton r, Williams 707 East Main Street Richmond, Virginia 23219 DATED: January 14, 1985

TABLE OF CONTENTS Page TABLE OF CITATIONS ..........................................iv I. INTRODUCTION ........................................ 1 II. THE PROCEEDINGS BELOW ............................... 4 III. ARGUMENT ........................................... 12 A. Public Interest Issues Were Correctly Decided .. 13

1. Pursuant to CLI-83-17 the Licensing Board Properly Excluded Evidence Premised on Uncertainties of Getting a Full Power License ......................... 13

2. The Licensing Board Properly Refused to Give Special Weight to the Intervenors' Unsupported Views Concerning the Public Interest ....... 18

3. The Licensing Board Properly Considered Exigent Circumstances In Connection with the Public Interest ..... 19

4. The Licensing Board Properly Refused to Consider the Need for Power from the Shoreha:n Plant .......... 22 B. Security Issues Were Resolved Correctly ........ 24

-ii-

1. The Licensing Board Properly Refused to Admit any Security Contentions ................................ 24

2. Security Findings Are Not Reversible Error ........................... 31

! C. Exigent Circumstances Supported the Exemption .................................. 33

1. The Licensing Board Properly Excluded Diesel Generator Evidence Unrelated to the Good Faith Issue ........................... 33

2. The Licensing Board Properly Considered the Length and Cost of the Shoreham Operating License Proceeding ......................... 36

3. The Licensing Board Properly Considered Inconsistencies in the Regulations' Interpretation and Application ............................ 37 D. The Licensing Board Correctly Found the "As Safe As" Standard Met .................. 39

1. The Licensing Board Properly Excluded PRA Testimony ..................... 40

2. The Licensing Board Properly Applied the "As Safe As" Standard .................. 45

a. 5 50.47(d) ............................. 47

b. Margin of Safety ....................... 49

c. Restoration of AC Power ................ 51

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d. Seismic Capability ..................... 52 I

e. Other Examples ......................... 53 l

3. The Licensing Board Properly l Considered the Offsite Power System ........ 56 E. There Is No Reversible Error in the September 5 Order Granting a License to Conduct Phase I and Phase II Activities ........ 58

1. The Issues Raised Are Moot ................. 58

2. There Was No Error in the September 5 Order .......................... 59

a. The September 5 Order Is Consistent with CLI-84-8 ............... 59

b. The Phase I and II License I

Was Consistent with NRC Precedent .............................. 61

c. A Phase I and II License Is Authorized .......................... 63 F. The Phase I and II License Complies with Section 50.57 .................... 64 IV. CONCLUSION .................................... .... 67 i

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-iv-i TABLE OF CITATIONS Cases Page Appel v. Morford, 62 Cal. App.2d 36, 144 P.2d 95 (1943) ................................. 35 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2),

LBP-80-30, 12 NRC 683 (1980) ....................... 29 Connecticut Yankee Atomic Power Co.

(Connecticut Yankee), 2 AEC 393 (1964) .......... 20-21 Eldon's Super Fresh Stores, Inc. v.

Merrill Lynch, Pierce, Fenner &

Smith, 296 Minn. 130, 207 N.W.2d 282 (1973) ......................................... 35 Fenner v. American Surety Co. of New York, 156 S.W.2d 279 (Tex. App. 1941) .................... 35 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-317, 3 NRC 175 (1976) ................................... 18 Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1),

ALAB-424, 6 NRC 122 (1977) ......................... 53 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-17, 17 NRC 1032 (1983) .............................. 3, 13 Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), order (April 30, 1984) .................................... 5 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984) ............................. passim Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-9, 19 NRC 1323 (1984) ................................. 15 n . - .

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-v-Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum and Order (July 18, 1984) .............................. 28 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum (September 24, 1984) ................................ 6 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC (November 21, 1984) ...................... 9 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 NRC 21 (1984) .................................... 6 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-779, 20 NRC 375 (1984) ................................... 6 Long Island Lighting Co. (Shoreh m Nuclear Power Station, Unit 1), ALAB-788, 20 NRC (October 31, 1984) ......................... 42 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445 (1983) ........................... 4, 34, 41 Long Island Lighting Co. (Shoreham Nuclear '

Generating Plant, Unit 1), Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for Low Power Operating License (April 6, 1984) .................. 38 Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), Order Denying Intervenors' Motion for Disqualification of Judges Miller, Bright and Johnson (June 25, 1984) ................................... 5-6 Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), Order Regarding Discovery Rulings (June 27, 1984) ............................,....... 14 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Order Concerning Additional Cross-Examination of Witnesses (July 18, 1984) ..................................... 7

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-vi-Long Island Lighting Co. (Shoreham Nuclear

. Power Station, Unit 1), Ordsr Granting in Part and Denying in Par- LILCO's Motions for Summary Dispouition on Phase I and Phase II Low-Power Testing (July 24, 1984) ................................... 6-7 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426 (1984) .................................. 17 Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), LBP-84-35A, 20 NRC 920 (1984) .................... 8, 9, 59-64, 66 Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1),. Order Denying Revised Security Contentions

[ Unrestricted] (September 19, 1984) ........ 10, 28, 30 Lon'q Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), Order Denying Revised Security Contentions

[ Restricted] (September 19, 1984) ...... 10, 26, 27, 28

. Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), LE 45, 20 NRC (October 29, 1984) ................... passim Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281 (1982) .................................. 35 Moore v. Commissioner of Internal Revenue, 101 F.2d 704 (2nd Cir. 1939) ....................... 35 National Casualty Co. v. Caswell, 317 Ill.

App. 66, 45 N.E.2d 698 (1941) ...................... 35 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-83-27, 18 NRC 1146 (1983) .................. 62, 63

, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-653, 16 NRC 55 (1981) ......................... 27 s

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13 (1974) .......................... 29 4

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Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-422, 6 NRC 33 (1977) .......................... 63 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775 (1979) .................................. 53 Public Service Electric and Gas Co.

(Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769 (1977) ......................................... 53 Snook v. Netherby, 124 Cal. App.2d 797, 269 P.2d 195 (1954) ................................ 35 Suffolk County and State of New York Motion for Disqualification of Chief Administrative Judge Cotter (Shoreham Nuclear Power Station, Unit 1), LBP-84-29A, 20 NRC 385 (1984) . . . . . . . . . . . . . . 6 United States Department of Energy i (Clinch River Breeder Reactor Plant),

CLI-82-23, 16 NRC 412 (1983) ....................... 19 United States Department of Energy (Clinch River Breeder Reactor Plant),

CLI-83-1, 17 NRC 1 (1983' .......................... 22 Vickers v. Motte, 109 Ga. App. 615, 137 S.E.2d 77 (1964) .................................. 35 Virginia Electric and Power Co.

(North Anna Power Station, Units 1 and 2), LBP-77-64, 6 NRC 808 (1977) ............................... 63-64 Washington Public Power Supply System (WPPSS Nuclear Project Numbers 3 & 5), CLI-77-11, 5 NRC 719 (1977) ............................................. 22 Washington Public Power Supply System (WPPSS Nuclear Project No. 3),

ALAB-747, 18 NRC 1167 (1983) ....................... 36 Wooley v. Standard Oil Co., 230 F.2d 97 (5th Cir. 1956) ................................. 35 g * , -3 .,--=wg 3 y -,,--g ,

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viii-Requ1ations 10 CFR 5 2.715(c) .......................................... 18 10 CFR Part 50, Appendix A .............................. 64-66 10 CFR Part 50, Appendix A, General Design Criterion 17 ..................... passim 10 CFR $ 50.10 ............................................. 19 10 CFR 5 50.10(c) .......................................... 22 10 CFR 5 50.12(a)............................ 6, 11, 19, 23, 45 10 CFR 5 50.12(b) ...................................... 19, 23 10 CFR 5 50.46 ......................................... 49, 50 10 CFR 5 50.47 ............................................. 47 10 CFR 5 50.47(d) ................................... 13, 47-49 10 CFR 5 50.57(c) .................... 5, 38, 60, 61, 63, 64-66 10 CFR 5 51.53 ............................................. 23 10 CFR S 51.53(c) .......................................... 22 10 CFR 5 73.2(i) ........................................... 25 Miscellaneous Need and Standards for Exemptions, SECY-84-290 (July 17, 1984) ....................... 8-9 Exemptions, SECY-84-290A (July 24, 1984) ................................. 9, 61 i

-ix-Other Authorities Federal Register 46 Fed. Reg. 61,132 (1981) ................................. 48 47 Fed. Reg. 30,232 (1982) ................................. 48 48 Fed. Reg. 10,772 (1983) .............................. 41-42 49 Fed. Reg. 11,269 (1984) ................................. 39 49 Fed. Reg. 24,111 (1984) ................................. 17 49 Fed. Reg. 28,483 (1984) ................................. 39 49 Fed. Reg. 28,487 (1984) ................................. 39 49 Fed. Reg. 30,611 (1984) ................................. 39 49 Fed. Reg. 30,613 (1984) ................................. 39 49 Fed. Reg. 30,735 (1984) ................................. 25 49 Fed. Reg. 31,352 (1984) ................................. 39 49 Fed. Reg. 35,448 (1984) ....... ......................... 62 49 Fed. Reg. 44,568 (1984) ................................. 39 49 Fed. Reg. 48,200 (1984) ................................. 25 49 Fed. Reg. 48,626 (1984) .................................. 9 Miscellaneous Black's Law Dictionary (5th ed. 1979) ...................... 34 NUREG-0954: Catawba Safety Evaluation Report, Supplement No. 3 ................................ 62-64 Webster's Ninth New Collegiate Dictionary (1984) ............................................. 46

LILCO, January 14,:1985 _.

UNITED STATES OF AMERICA 07 :06 NUCLEAR REGULATORY COMMISSION

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Before the Atomic Safety and Licensing Appeal Board "4':H in the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

LONG ISLAND LIGHTING COMPANY'S REPLY BRIEF

l. INTRODUCTION On October 29, 1984, the Licensing Board issued its initial Decision (LBP-84-45) recommending that LILCO be authorized to conduct low power testing up to 5% of rated power without completing qualification of LILCO's onsite diesel generators. The initial Decision found that the proposed low power testing posed no danger to life or property and would be .

as safe as low power testing at a plant with qualified onsite diesel generators.

The Licensing Board further found that there were exigent circumstances warranting the granting of an exemption to conduct this low power testing and, therefore, that the exemption would be "otherwise in the public interest."

I

, By impugning the integrity of the Licensing Board and attempting to characterize proper evidentiary rulings as a denial of due process, the Suffolk County and State of New York Brief in Support of Appeal of October 29, 1984 ASLB Decision on LILCO's Exemption Request (Intervenors' Brief) attacks the Initial Decision. Yet two pervasive and fundamental points undercut the Intervenors' appeal. First, there was no l l

evidence during the nine days of evidentiary hearings that the proposed low  :

l power testing would present any danger to life or property. Disregarding )

, the large amounts of time available to restore AC power in order to maintain l l the plant within specified operational limits, the Intervenors contend solely that LILCO's alter .:t: AC power facilities are not identical in every respect to LILCO's TDI diesels designed for full power operation. In short, they attempt to construct a straw man -- a " full power" standard unnecessary for low power testing -- and then knock it down.1/ The Licensing Board was not  :

fooled by this ploy.

Second, many of the Intervenors' complaints about the public interest issues arise from their erroneous premise that the Licensing Board should have considered their view that low power testing ought not to be

1/ Thus, it is no coincidence that the Intervenors have de-emphasized substantive safety issues in each of their post-hearing arguments. See Intervenors' Brief at 32-43; Tr. at 3081-3097; Suffolk County and State of New vork Views . . ., (Sept. 14,1984) (no mention of safety issues except i- at pp. 23-24 of attachment); Motion to Strike LILCO's Unauthorized Pleading

. . ., at 2 (Nov. 9,1984) (minimal mention of safety); Suffolk County and the State of New York Comments Concerning Commission Review of LILCO's Exemption Request at 4,17-19, 27-30 (Nov. 29,1984) (minimal mention of safety).

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conducted absent certainty that Shoreham will be licensed for full power. Yet the Commission has already ruled that low power testing may go forward regardless of any perceived uncertainties. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit I), CLI-83-17,17 NRC 1032 (1983).

Accordingly, the issue was not whether low power testing should be permitted in the face of any future uncertainties, but whether low power testing should be permitted early -- before completing licensing proceedings concerning the TDI diesel generators. The Intervenors failed to prove any legitimate public interest consideration supporting a delay in low power testing.

Intervenors ignore these points in making their hollow cries of bias, denial of due process and unfairness. But adverse evidentiary rulings do not deny due process when they are well-founded in the law. It is not a denial of due process to consider only one party's evidence in the absence of any other admissible evidence. The Licensing Board declined to allow the low power proceeding to degenerate into little more than a public opinion poll.

Instead, it carefully considered the appropriate issues in view of the Commission's guidance, afforded all parties the opportunity to present relevant, material and otherwise admissible evidence, and issued a 106-page Initial Decision carefully describing its reasoning. That initial Decision is well founded and should not be reversed in any respect.

11. THE PROCEEDINGS BELOW On March 20, 1984, LILCO filed its Supplemental Motion for Low Power Operating License contending that pending diesel generator issues need not be resolved prior to granting a low power license for Shoreham.2/

LILCO requested approval for four discrete phases: fuel load and precriticality testing (Phase 1), cold criticality testing (Phase ll), heat-up and low power testing to rated pressure / temperature conditions (approximately 1% rated power) (Phase lil), and low power testing (1% to 5%

rated power) (Phase IV). For Phases I and ll, LILCO demonstrated that no AC power was needed to satisfy the functions specified in GDC 17. For Phases ill and IV, LILCO proposed to provide the necessary functions through a combination of its normal offsite power supplies and a 20 MW deadline blackstart gas turbine and a block of four 2.5 MW deadline blackstart I

EMD diesel generators, both located at the site.3/

2/ LILCO first requested a low power license on June 8,1983. The Licensing Board (the Brenner Board) resolved favorably to LILCO all issues relevant to low power operation, except for Suffolk County's then recently admitted diesel generator contention. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57,18 NRC 445, 634 (1983).

Contrary to the Intervenors' misrepresentation (Intervenors' Brief at 2), the Brenner Board did not hold that LILCO could not obtain a low power license until all TDI diesel generator contentions were resolved. In fact, the Brenner Board stated only that based on the record then before it, there could be no issuance of a low power license. 18 NRC at 634 (1983). It invited LILCO to create a record supporting such a license if that attempt was wa rra nted . Tr. 21,630-633.

3/ The term " deadline blackstart" means that the equipment recognizes through its own circuitry that there has been a loss of power and automatically starts without operator action. Tr. 333, 524 (Schiffmacher).

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During the second day of evidentiary hearings on LILCO's motion in April, the Licensing Board's proceedings were temporarily interrupted by a federal court.4/ Following this interruption,- the Commission engaged LILCO's March 20 motion. After oral argument on May 7, the Commission 3

issued its May 16, 1984 order, which held that 10 CFR S 50.57(c) should not i

be read to make GDC 17 inapplicable to low power operation.5/ Long Island j 4/ The evidentiary process before the Licensing Board was interrupted on

! April 25,1984 by a temporary restraining order. On the eve of argument over the validity of that order, the Commission vacated the procedural arrangements under which LlLCO's March 20 request was being considered and scheduled oral argument. Long Island Lighting Co. (Shoreham Nuclear

Generating Plant, Unit 1), Order (April 30, 1984). Rather than respond to LILCO's motions .to dismiss the federal suit, Suffolk County and New York State voluntarily dismissed their legal action even though the Commission had not yet granted the relief requested.

5/ There followed a series of bizarre attempts by the Intervenors to avert or delay further proceedings by the Licensing Board. On May 21, May 22, May 24, May 30, May 31 and June 1, either the County, the State or both i

filed papers with the Commission seeking clarification of CLI-84-8 or moving to strike LILCO motions pending before the Licensing Board. Suffolk County's Request for Clarification of Commission's Order of May 16, 1984 (May 21, 1984); Request by the State of New York for Clarification of Commission's Order of May 16,1984 (May 22,1984); Joint Motion of Suffolk

( County and the State of New York to Strike LlLCO's Three Unauthorized l Pleadings Entitled . . . (May 24,1984); Joint Suffolk County and New York

( State Supplement to Requests for Clarification of Commission's May 16 Order j (May 30,1984); Joint Request of Suffolk County and New York State for

• t Prompt Clarification of the Posture of this Proceeding (May 31,1984); and Joint Motion of Suffolk County and the State of New York for the i Commission's Prompt Attention to and Ruling on Pending County and State l Motions and for Stay of Inconsistent ASLB orders in the Interim (June 1, 1984). The Intervenors also proceeded indirectly. On June 5, they moved for disqualification of Chairman Palladino; on June 18, they moved for disqualification of Judges Miller, Bright and Johnson (which was dismissed l without prejudice and refiled on June 21); and on June 22, they moved for disqualification of Chief Administrative Judge Cotter. All of these l disqualification attempts were denied. Long Island Lighting Co. (Shoreham i Nuclear Generating Plant, Unit 1), Order Denying Intervenors' Motion for )

(footnote continued) l l l l l

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Mghting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8,19 NRC 1154 (1984). The Commission did not say how GDC 17 was to be applied and, particularly, did not address its application for fuel load and initial criticality testing. The Order did, however, recognize LILCO's intent to seek an exemption under 10 CFR S 50.12(a) and advised LILCO of certain matters to be addressed in its application.

LILCO applied for such an exemption on May 22, 1984. Because the Commission had not ruled on the summary disposition motions on Phases I and ll that LILCO had filed with the Commission, LILCO also refiled the motions with the Licensing Board.

On July 24, the Licensing Board issued its Order Granting in Part and Denying in Part LILCO's Motions for Summary Disposition on Phase I and Phase 11 Low-Power Testing. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), slip op. (July 24,1984) (July 24 Order).

The Board found undisputed that during Phases I and 11 there was no reliance on the availability of onsite AC power sources to protect the plant.

The Board, however, declined to authorize Phases I and ll testing because it (footnote continued)

Disqualification of Judges Miller, Bright and Johnson (June 25,1984); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 NRC 21 (1984); Suffolk County and State of New York Motion for Disqualification of Chief Administrative Judge Cotter (Shoreham Nuclear Power Station, Unit 1), LBP-84-29A, 20 NRC 385 (1984); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-779, 20 NRC 375 (1984); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum (Sept. 24, 1984).

1 then believed, based on the Staff's response, that CLI-84-8 required an exemption for all portions of LILCO's proposed low power testing program. l l

l Additional testimony was filed by all parties by July 16.g/ On l

July 27, LILCO filed motions to strike various portions of the County's prefiled written testimony and all of Richard Kessel's pretiled written testimony on behalf of New York State.7/ No other party filed written

motions to strike. On July 30, the evidentiary hearings resumed and ran through August 7.

On August 2, LILCO moved the Board to refer its denial of summary disposition on Phases I and 11 to the Commission for review.!/

4 f/ By order of July 18, 1984, the Licensing Board made clear that the hearing was to be resumed, not started anew. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), Order Concerning Additional Cross-Examination of Witnesses, slip op. at 2 (July 18,1984). Therefore, the testimony taken and fully cross-examined on April 24 and 25 would be considered. ..

7/ LILCO's Motion to Strike the Direct Testimony of Dale G. Bridenbaugh and Richard B. Hubbard on behalf of Suffolk County; LILCO's Motion to Strike Fortions of the Testimony of Michael D. Dirmeier and Jamshed K.

Madan on Behalf of Suffolk County; LILCO's Motion to Strike the Testimony of G. Dennis Eley, C. John Smith, Gregory C. Minor and Dale G. Bridenbaugh on Behalf of Suffolk County Regarding EMD Diesel Generators and 20 MW Gas Turbine; LILCO's Motion to Strike Testimony of Robert Weatherwax, Mohammed El-Gasseir and Gregory Minor on Behalf of Suffolk County; and LILCO's Motion to Strike Direct Testimony of Richard Kessel on Behalf of the State of New York.

8/ LlLCO's Motion for Referral of Order Granting in Part and Denying in Part LILCO's Motions for Summary Disposition on Phase I and Phase ll Low Power Testing (August 2,1984). LILCO also asked the Commission itself to take up the issue. LILCO's Motion for Directed Certification of Licensing Board's July 24, 1984 Order Granting in Part and Denying in Part LILCO's Motions for Summary Disposition on Phase I and Phase il Low Power Testing

( August 2,1984).

LILCO asked for Commission review because the May 16 order did not clearly evidence the Commission's intent with regard to fuel loading and precriticality testing and, by extension, to cold criticality testing where no AC power is needed. LILCO noted that the Commission had granted fuel load and pre-criticality testing licenses to other plants situated similarly to Shoreham. The Staff supported LILCO's motions for directed certification and referral.9/

As a result of LILCO's motions and the Staff's response, the Licensing Board revisited the relationship of the Ccmmission's May 16 order to fuel load and precriticality testing (Phases I and ll).10/ The Board observed that "it has become increasingly clear that the Commission's. Order (CLl-84-8) is not without serious ambiguities." LBP-84-35A, 20 NRC at 922. The Board also noted with interest that the Staff had been prompted to seek Commission guidance on how to apply CLI-84-8 to other license applications. Id. at 923; see SECY-84-290 (July 17,1984).11/ - The Board found portions of the Staff's paper particularly pertinent to its reconsideration of LILCO's summary disposition motions, including the following:

9/ NRC Staff Response to LILCO Motion for Referral of the Board's Order on Summary Disposition (August 17, 1984); NRC Staff Response to LILCO's Motion for Directed Certification of the Licensing Board's Order Ruling on LILCO's Motions for Summary Disposition of Phases I and II (August 17, 1984).

10/ Contrary to the intervenors' claim (Intervenors' Brief at 47), the Board's reconsideration was not sua sponte. The Board acted in response to LlLCO's motion for referral and the Staff's response thereto. Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), LBP-84-35A, 20 NRC 920, 922-23 (1984) .

1_1/ SECY-84-290 requested " Commission guidance on the need and standard for exemptions from the regulations in light of the Commission's Shoreham decision, CLI-84-8." SECY-84-290 at 1.

f

'The Shoreham decision, involving compliance with l NRC regulations during the early stages of operation, the need for exemptions from the regulations and the standards for granting exemptions under 10 CFR S 50.12, establishes practices and requirements for licensing which differ significantly from prior regulatory interpretation and practice . . . .'

20 NRC at 923 (quoting SECY-84-290 at 1) (emphasis added). The Board also found significant the NRC general counsel's conclusion that "'[s]ome regulations, including some GDC, may properly be considered inapplicable to fuel loading and low power testing if such a conclusion is fairly compelled by simple logic and common sense.'" M. at 924 (quoting SECY-84-290A at 26 (July 24,1984)). Finally, the Board indicated its awareness that the Commission had held "a Discussion of Commission Practice on Granting Exemptions" at an open meeting on July 25, 1984. l_d. at 923-24. In light of these developments, the Licensing Board reconsidered and reversed its July 24 Order denying summary disposition and granted the motions. M. at 924.12/

After closing oral arguments on August 16, the Board turned to the Intervenors' motion to admit security contentions. Following a preliminary discussion of the security contentions, the Board asked LILCO to submit further information in writing. LILCO did so in a reply to the 12/ On December 7, a license to conduct Phase I and ll activities was issued to LlLCO following the Commission's immediate effectiveness review.

See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

CLI-84-21, 20 NRC (Nov. 21,1984); 49 Fed. Reg. 48,626 (1984). Fuel loading is currently in progress.

i contentions dated August 24. LILCO's Response to Board's August 14, 1984 Request for Information on the Shoreham Security Program and Reply to Proposed Security Contentions. The County and State responded on August 28, and the Board heard arguments on August 30. Subsequently, while the Board had the security issue under advisement, the Staff issued a letter to LILCO on September 11 that seemingly changed the Staff's position concerning the treatment of vital areas. The Board, therefore, held another conference of counsel on September 14. On September 19, the Board denied admission of the security contentions because they failed to meet the standards established by the Commission. Long Island Lighting Co.

(Shoreham Nuclear Generating Plant, Unit 1), Order Denying Revised Security Contentions [ Unrestricted), slip op. at 3-4 (Sept.19,1984)

(September 19 Order [ Unrestricted]); Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1), Order Denying Revised Security Contentions [ Restricted), slip op. at 3-20 (Sept.19,1984) (September 19 Order [ Restricted)).

On October 29, the Lice eing Board issued its lengthy Initial Decision . That decision reaffirmed the health and safety findings for Phases I and ll, made additional health and safety findings for Phases ill and IV, and made public interest findings applicable to all four phases, its principal i conclusions were summarized as follows:

-_. . _ _ ~ ..-._.,__,_-_,__.m.. . _ _ _ _ _ . _ , , . _ _ _ , _ _ _ _ _ . _ _ - _ . . . . _ _ . . _ , _ , - , _ , . . . . _ , - . -

v 7-(1) The evidence establishes that no fission products will be released from the fuel if AC power is restored to the plant within 55 minutes in the event of a LOCA, and that there is adequate assurance that in the event of a simultaneous LOCA and loss of offsite AC power, power would be restored from either the gas turbine or the EMDs within 55 minutes. Thus, the Board finds that the alternate AC sources proposed for use at Shoreham at five percent power provide a level of protection comparable with a fully qualified onsite source of emergency AC power. The Board therefore concludes that reliance by LILCO on the proposed alternate sources meets the "as safe as" standards set forth by the Commission in CLl-84-8 (19 NRC 1154).

(4) After taking into account and balancing the equities identified by the Commission in footnote 3 of CLI-84-8 (19 NRC 1154,1156), the Board finds that there are exceptional circumstances that warrant the granting of an exemption under the provisions of 10 CFR S 50.12(a).

(5) Based upon a balancing of the equities identified in CLl-84-8, footnote 3, supra, the Board finds that the Application for Exemption filed by LILCO and the evidence adduced in support thereof demonstrate the " exigent circumstances" that favor the granting of an exemption and show that, in spite of its noncompliance with GDC-17, the health and safety of the public would be protected (CLI-84-8, l 19 NRC 1154,1155).

(6) Based upon a finding that the Application for Exemption meets the " exigent circumstances" test set forth by the Commission, the Board concludes that the application meets the "otherwise in the public interest" provision of 10 CFR S 50.12(a).

l l Initial Decision at 102-104.

l f

1

111. ARGUMENT Throughout the Intervenors' Brief appear numerous citations to Federal court opinions saying, in effect, that administrative hearings must comply with various due process guarantees. Perhaps this is an attempt by the Intervenors to achieve an appearance of legitimacy for their erroneous evidentiary arguments. Nowhere, however, does the Intervenors' contrived repetition of due process claims attempt to relate the facts of tha cases cited to the facts here. There are simply no due process issues before this Appeal Board because the evidentiary rulings of the Licensing Board were correct.

Indeed, contrary to the Intervenors' claim that there was a " repeated pattern of refusing to admit evidence" (Intervenors' Brief at 6), the only pattern was the Intervenors' repeated attempts to inject irrelevant, immaterial and unqualified testimony into the record. Indeed, the Intervenors eschew a reasoned presentation of their arguments for totally unwarranted attacks on the integrity of the Licensing Board. Such tactics should not be tolerated by this Appeal Board. LILCO does not attempt to respond separately to these repetitive attacks on the Board's integrity and fairness. Each of the Licensing Board's decisions is supportable in law and fact. Accordingly, LILCO confines its response to the evidentiary and other substantive rulings of the Licensing Board.p/

H/ For convenience, these arguments correspond to the format of the i Intervenors' brief.

l l

I l .

A. Public Interest issues Were Correctly Decided

1. Pursuant to CLI-83-17 the Licensing Board Properly Excluded Evidence Premised on Uncertainties of Getting a Full Power License Only two contested issues remain to be resolved prior to the issuance of a full power license for Shoreham: emergency planning and qualification of LILCO's TDI emergency diesel generators. Both the Commission's regulations and its specific holding in this case state that resolution of the emergency planning issue is not necessary for low power l operation. 10 CFR S 50.47(d); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLl-83-17,17 NRC 1032 (1983). Accordingly, in considering the public interest the issue is one of timing only: is it in the public interest to allow LILCO to proceed with low power testing before the TDI licensing proceedings are concluded?

Nevertheless, the Intervenors contend that they should have been able to inject the issue of full power uncertainty. Thus, they complain because the Licensing Board excluded testimony by Madan and Dirmeier concerning the potential cost of decommissioning Shoreham if a full power license is not issued. Intervenors' Brief at 10. Yet, nowhere do they contend that the purported financial or economic disadvantages are any different whether a low power license is issued now (pursuant to the requested exemption) or later (at the completion of TDI licensing l

I I

proceedings) . Indeed, since the testimony was based solely upon the possibility that the plant might not receive a full power license, the alleged i

j economic or financial disadvantages would occur regardless of when a low power license was issued. Consequently, the testimony was irrelevant to the issue of "now vs. later."14/

The Intervenors also erroneously contend that since the public interest considerations proposed by LILCO depended on full power operation of the plant, the Board should have admitted evidence relating to the

uncertainties of full power operation. Intervenors' Brief at 8-9. This is a non sequitur. As the Commission has recognized, low power testing is merely l

l 14/ Even before the evidentiary hearings resumed, the Licensing ' Board warned the parties concerning the appropriate scope of the issue in granting a protective order against certain discovery:

The financial or economic hardships referred to under the category of " equities" in the Commission's May 16 Order (CLI-84-8, footnote 3), is limited to those which the Board is charged with looking at in this proceeding. Those matters include financial or economic impacts of the earlier commencement of activities under a low-power license, d

compared or contrasted with the later time that low-power

. operations could commence as a result of the final decisions of other Boards.

Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1),

Order Regarding Discovery Rulings, slip op. at 2-3 (June 27,1984)

(emphasis added). See also Tr. 2145-48. There were other grounds for striking much of Madan and Dirmeier's testimony, although the Licensing

, Board did not rely on them. For example, LILCO had moved to strike pages 44-47 of their testimony because Madan and Dirmeier lacked any experCse to testify concerning the decommissioning costs, salvage and reclamation values or potential waste storage and handling costs. LILCO's Motion to Strike Portions of the Testimony of Michael D. Dirmeier and Jamshed K. Madan on Behalf of Suffolk County, at 8 (July 27,1984). Even if the evidence had been relevant or material, it was not competent.

a step on the way to full power. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-9,19 NRC 1323,1326 (1984). Thus, a number of the public interest considerations necessarily relate to potentially advancing full power operation. The benefits to be derived were strictly related to the timing of low power testing. For example, LlLCO proved that if, as a result of the exemption, full power operation were reached sooner, the public would benefit from a quicker reduction in dependence on foreign oil and lower long-term rates. Initial Decision at 61.15/

The Intervenors also complain (Intervenors' Brief at 12) that the Board accepted the uncontradicted evidence that "the granting of a low-power exemption would send a positive signal to the capital markets that could help to alleviate LILCO's financial distress in obtaining vitally needed cash by the issuance of securities." Initial Decision at 61. The Intervenors do not ascribe any reasons for the challenge to the Board's finding and there are none. Indeed, the Commission expressly ordered that the Licensing Board 15/ The Intervenors could have attempted to refute LILCO's public interest evidence. Indeed, Madan's and Dirmeier's testimony attempting to refute the potential economic benefit from earlier full power operation was admitted and considered by the Board. Thus, the Intervenors claim that the Board did not

! consider their evidence concerning economic matters is simply wrong; only inadmissible testimony was excluded. Cross-examination of the admitted testimony revealed that Madan and Dirmeier had mistakenly overlooked certain

information in their economic analyses (Tr. 1992-2027 (Dirmeier, Madan)) and had in fact based their criticism of LILCO's evidence on superseded computer runs upon which LILCO's evidence was not based. Tr. 2012 (Dirmeier) .

Similarly, Madan's and Dirmeier's attempt to refute LILCO's testimony concerning reduction of dependence on foreign oil was admitted but was not credible since it was based on the assumption that Shoreham would be replaced in 2015 with oil-fired units. Tr. 2062-65 (Madan).

l

consider any financial or economic hardship. CLl-84-8,19 NRC at 1156, n.3.16/

The Intervenors also complain that certain testimony of Richard Kessel was struck or disregarded. Intervenors' Brief at 11 n.10. Yet, as LlLCO asserted in its Motion to Strike Direct Testimony of Richard Kessel on Behalf of the State of New York (July 27, 1984), all of this testimony was either immaterial, irrelevant or incompetent. Without technical expertise or factual foundation, Kessel attempted summarily to opine that low power testing was not in the public interest. The Intervenors do not appear to complain about the striking of much of this testimony, but challenge the failure of the Board to rely on the remaining testimony. Those remaining portions suffered two basic flaws and should have been struck, not merely disrega rded.

First, Kessel had no expertise to express the opinions admitted.

He stated (1) that if Shoreham were subsequently abandoned, costs would increase unnecessarily as a consequence of several factors, including the reduced value of nuclear fuel; (2) that LILCO's proposal to accelerate low 16/ Interestingly, this was an area oper.ed by Suffolk County's cross-examination, over LILCO's objection, of LILCO's financial witness, Anthony Nozzolillo, in an attempt to challenge his analysis of economic benefits to

-ratepayers by inquiring about LILCO's financial state. Tr. 1377-80 (Nozzolillo) . Thus, it was appropriate for LILCO to show on redirect that the granting of this exemption might help to alleviate the financial ills the County tried to demonstrate. In short, if consideration of this matter was erroneous, it was brought on by the County. Perhaps most importantly, the Intervenors failed to object to this testimony during the hearings. See Tr.1393-96 (Nozzolillo) .

power testing would probably require additional funds which LILCO would obtain by reducing non-nuclear costs and service; and (3) that LILCO's financial qualifications were insufficient to operate the plant. The record shows that Kessel had no engineering background, had never been in a management position in private business, had no experience with nuclear fuel, had never worked for a utility, had no formal economics education and had been avidly anti-LILCO for much of his career. Tr. 2881-83 (Kessel).H/

Thus, even if admissible, the testimony was properly accorded no weight.

Second, Kessel's remaining testimony is immaterial. The Board had already struck other evidence concerning potential abandonment costs.

Tr. 2888. Kessel's testimony concerning the impact on LILCO's service did not attempt to explain why the alleged impact would differ depending on when low power testing took place. Tr. 2909-17 (Kessel). And Kessel's testimony concerning LILCO's financial qualifications ran afoul of both the Commission's rule that financial qualifications are not an issue in an operating license proceeding and the specific rejection of a collateral attempt to raise such issues in front of the Brenner Board. See Financial Qualifications Statement of Policy, 49 Fed. Reg. 24,111 (1984); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426 (1984).

H/ Mr. Kessel, whose resume does not disclose any academic background in the areas on which he attempted to testify, characterizes himself as a consumer advocate who has spent his career dealing with the pricing of consumer goods and dating of perishable foods, intervening in rate cases, organizing commuter strikes on railroads, perfoming surveys of the prices of Halloween candy, Thanksgiving turkeys, Valentine hearts and Mother's Day roses and worrying about "butterless buttered popcorn," "alcoholless apple A

champagne," and " leaded lead-free gasoline." Tr. 2918-18A (Kessel) .

I

2. The Licensing Board Properly Refused to Give Special Weight to the Intervenors' Unsupported Views Concerning the Public interest l The Intervenors err in their assumption that merely by representing the Governor of New York or the County of Suffolk, they somehow have the last word on the "public interest." They suggest that because they are the " actual elected representatives of the public," they deserve special consideration despite their failure to comply with evidentiary rules.18/ But even public parties are not finders of fact. Their proper evidence is entitled to consideration just like that of other parties. It is not, however, entitled to preferential consideration.19/ See Gulf States Utilities Q. (River Bend Station, Units 1 and 2), ALAB-317, 3 NRC 175,180 n.7 (1976) ("an ' interested state' is not . . . relieved of the obligation of complying with all procedural rules . . ."). Section 2.715(c) of the Commission's regulations entitles representatives of an interested state or locality to a reasonable opportunity to participate in licensing proceedings.

18/ The Board did not consider "LILCO's view of the public interest" as Intervenors' Brief (at 12) suggests. Rather, the Board considered facts contained in LILCO's testimony in determining the public interest. In contrast, apart from testimony which was properly excluded, the Intervenors set forth little more than unsupported views.

19/ The Intervenors' Brief (at 13) quotes repeatedly from a brief that the Commission purportedly filed in the U.S. Court of Appeals involving the

' Diablo Canyon plant to the effect that the views of the chief elected representative of California should be accorded great weight in fixing where the public interest lies. Perhaps such weight should be afforded when all other factors are equal and the representative's views do not conflict with applicable law. That is not the case here, however.

No regulations, however, entitle such a government entity to findings based upon inadmissible and otherwise incompetent evidence. The Board's refusal to consider inadmissible testimony did not evidence unfairness or a lack of due process. Rather, the Board properly focused the evidentiary hearing upon the material issues. Anything less would have been an abdication of the Board's administrative authority.

3. The Licensing Board Properly Considered Exigent Circumstances in Connection with the Public Interest Section 50.12(a) permits the granting of such exemptions as the Commission determines, among other things ". . . are otherwise in the public interest." The regulation says nothing about " exigent circumstances."20/

When the Commission discussed and illustrated " exigent circumstances" in CLl-84-8, it could only have meant to specify the considerations attendant to "otherwise in the public interest."21/ Thus, the Commission suggested that 20/ Section 50.12(a) should be contrasted with 6 50.12(b) which specifically applies to exemptions permitting the conduct of activities prior to issuance of construction permits. The latter section expressly requires certain exigent circumstances to be considered. In United States Department of Energy (Clinch River Breeder Reactor Plant), CLi-82-23,16 NRC 412, 425-26 (1983),

the Commission noted that the exigent circumstances required to be considered by S 50.12(b) provided more detailed regulatory guidance regarding the content of "public interest" criteria in S 50.12(a) as they apply to requests for exemptions from 10 CFR S 50.10. Similarly, in CLI-84-8, in detailing the exigent circumstances considerations, the Commission was outlining the public interest inquiry it wished to consider with respect to Shoreham.

2_1/ Any other conclusion would not only defy common sense but also impute to the Commission an intent to add substantial requirements to S 50.12(a) without benefit of rulemaking.

the Licensing Board consider such matters as the stage of Shoreham's completeness, any internal inconsistencies in the regulations, any financial or economic hardships that might be imposed, whether the applicant had made a good faith effort to meet the regulation from which an exemption was requested, public interest in adherence to the regulations and the safety significance of the issues involved. The Licensing Board, in turn, considered each of these factors and made findings concerning them.22/

Based upon those findings, it concluded that there were sufficient exigent circumstances to warrant the granting of the exemption, and that, accordingly, the exemption was in the public interest. This was specifically the process the Commission had ordered.

The Intervenors argue that the Board's analysis is " circular" and

" devoid of substantive content or basis in logic and fact." ' Intervenors' Brief at 14. They cite no independent exigent circumstances requirement, however. Neither do they cite any authority stating that exigent circumstances and public interest must be wholly distinct considerations.

Instead, they misleadingly and erroneously rely on Connecticut Yankee Atomic Power Co. (Connecticut Yankee), 2 AEC 393 (1964), which did not even mention exigent circumstances. Rather, it involved the relationship of health and safety matters to the public interest:

22/ Though the Licensing Board did not rely on alternative grounds for the public interest finding, there was evidence from which additional public interest factors could have been found in favor of the requested exemption.

Thus, there was unrebutted testimony that the early testing opportunity would afford LILCO's operators additional training and flexibility beyond that normally attendant to the low power test program. Tr. 830, 846 (Gunther).

I

" . . . 'otherwise in the public interest" is not limited merely to safety considerations, since the word "otherwise" is defined as "in other respects". It is concluded that "public interest" is not needless repetition to the safety factors in the term " endanger life or property", but constitutes a distinct separate aspect to be resolved.

2 AEC at 394 n.2 (emphasis added).

This language aiso disposes of the Intervenors' attack on the Board's reliance on the fact that the proposed low power testing does not present any increased risk to public health and safety as one basis for its public interest conclusions. Connecticut Yankee teaches that the public interest determination "is not limited merely to safety considerations." 2 AEC at 394 n.2 (emphasis added). It does not exclude consideration of safety from the public interest determination. Indeed, in CLl-84-8 the Commission explicitly directed the Board to consider the safety significance of the issues-involved in determining exigent circumstances. And, safety is logically an important factor in ascertaining the public interest. In this case, for example, where there are no adverse public interest considerations applicable to the timing issue -- whether low power testing should proceed now or after diesel generators are licensed -- the issue of safety becomes paramount, though not exclusive.

- - - . , . .. .- - - . , . ~ - - . . . . . - -. . . _ - - . . . . . . . - .

l

4. The Licensing Board Properly Refused to Consider the Need for Power from the Shoreham Plant The need for power from a proposed plant is not an issue within the scope of operating license proceedings. Section 51.53(c) admonishes that

. [p] residing officers shall not admit contentions proffered by any party concerning need for power or alternative energy sources for the proposed plant in operating license hearings.

Ignoring this admonition, the Intervenors contend that the Board erroneously struck conclusory and incompetent opinion testimony concerning the need for power from Shoreham and failed to consider this issue in adjudging the public interest. Yet if no contention concerning the need for power is admissible, it follows that no evidence concerning such a contention would be admissible.

The cases upon which the Intervenors rely also do not support their argument. Both United States Department of Energy. (Clinch River Breeder Reactor Plant), CLI-83-1,17 NRC 1, 4 (1983) and Washington Public

( Power Supply System (WPPSS Nuclear Project Numbers 3 r, 5), CLi-77-11, 5 i

NRC 719 (1977) dealt with requests for exemptions from S 50.10(c), which

requires that a construction permit be granted before construction activities commence. Neither case dealt with exemptions sought for a completed plant.

l The difference is substantial, as evidenced by the Commission's prohibition in S 51.53(c). In deciding whether to permit construction of a plant, the need for power from the reactor is a legitimate concern; with a complete plant, it is 1

l l

l moot. This is reflected in the structure of the regulations: section 50.12(b), which deals solely with exemptions prior to the issuance of a construction permit, expressly allows consideration of the " power needs to be

[ served) by the proposed facility." This starkly contrasts with the focus on operating licenses in S 51.53 and S 50.12(a).

Further, intervenors' suggestion (Intervenors' Brief at 16-18) that LILCO testimony was admitted while theirs was excluded is both inaccurate and misleading. Intervenors proffered no competent evidence concerning the need for power. The only testimony offered was by New York State witness Richard Kessel who, without any relevant professional qualifications or institutional authority,23/ sought to opine without any accompanying analysis that New York did not require Shoreham's capacity "now nor for many years in the future." Tr. 2914 (Kessel) . Not only was this testimony proffered by a witness with no expertise concerning the need for power, no substantive factual basis was offered to support the claim. Tr.

2914-15 (Kessel) . Moreover, the testimony conflicted with the State's own .

Energy Ma. ster Plan, prepared by the New York State Energy Office, calling for Shoreham to come on line. Tr. 2886-87.

1 Suffolk County tendered no testimony whatsoever concerning the need for power in its case. To the extent Intervenors now suggest that i

23/ Kessel heads the New York State Consumer Protection Board, fiowever, it is the New York State Energy Office which is responsible for i

projecting power needs, not the Consumer Protection Board. Tr. 2885-87 ,

(Kessel). 1 l

Suffolk County Exhibit 20 (the Marburger Report)M/ is evidence supporting the need for power arguments, they are wrong. The Marburger Report was used as impeachment evidence during cross-examination of LILCO's witness Brian McCaffrey concerning the length and breadth of the licensing proceedings. See Tr.1600-1614 (McCaffrey), 2861-62. Mr. McCaffrey did not testify about the need for power in his direct testimony, and the two brief paragraphs of the Marburger Report discussing the need for Shoreham (pp. 33, 37) were not used in his cross-examination. The allegedly impeaching exhibit, not sponsored by a Suffolk County witness and offered solely for impeachment purposes, was not evidence, admitted or otherwise, on the need for power.

B. Security issues Were Resolved Correctly

1. The Licensing Board Properly Refused to Admit any Security Contentions Intervenors claim that the Licensing Board erred in denying the admission of any security contentions. Intervenors' Brief at 18-23. Reduced to their esrence, the Intervenors' arguments can be summarized as follows:

(1) the Board erred in ruling that, as a matter of law, portions of Shoreham's 24/ The Marburger Report, issued in December 1983 by a 13-member commission under the aegis of the Governor of New York, consists of a 37-page principal report covering a wide variety of Shoreham-relatad topics, plus over 200 pages of wildly conflicting individual members' views on Shoreham, nuclear power and life in general. Need for power issues are only

, addressed in the principal report in two brief paragraphs (pages 34 and 37).

offsite power system were not vital areas, and (2) the Board erroneously applied the Commission's basis and specificity requirements for admissible contentions.M/

The Board properly concluded that the Commission's regulations l

do not require any portion of LILCO's offsite power system to be vital I

equipment.M/ First, the NRC's regulations do not currently require even i

)

onsite power sources to be considered vital equipment for full power operation . On August 1,1984, the NRC issued a proposed rule which would require treating back-up AC power sources as vital areas. 49 Fed. Reg.

30,735 (1984). However, that proposal is still exactly that -- a proposal.2_7/ l l

Further, the need for back-up AC power at low power is substantially less than at full power.M/ In short, there is no present regulatory requirement M/ The first of these points is repeated in various guises three times in the Intervenors' Brief, at 20-22, 22, and 23. A single reply will suffice.

2_G/ Vital equipment is defined in 10 CFR S 73.2(i) as follows:

(i) " Vital equipment" means any equipment, system, device, or material, the failure, destruction, or release of which could directly or indirectly endanger the public health and safety by exposure to radiation. Equipment or systems which would be required to function to protect public health and safety following such failure, destruction, or release are also considered to be vital.

27/ The NRC recently (Dec. 11, 1984) extended the comment period on the proposed rule until March 7,1985. 49 Fed. Reg. 48,200 (1984).

28/ For example, as the record shows, only a LOCA during Phases lli and IV rt! quires any AC power whatever during low power testing. Initial Decision at 36-37, 74 (1 11), 75 (1 15). At full power, other more likely events (ea, loss of offsite power) rely on back-up AC power.

for classification of onsite AC power sources as vital areas even at full power, much less any basis for requiring such a classification at low power.

See September 19 Order [ Restricted] at 9 n.13; see also Tr. S-296 (Kasun).

Second, even if a requirement did exist to classify onsite diesels as vital equipment, there would be no justification for imposing such a

! requirement on LILCO's offsite power system. LILCO requested an exemption from the requirement to have a qualified onsite power source. Thus, necessarily included within the exemption request is an exemption from all of the regulatory baggage attendant to such a power- sou rce. Put another way, i

4 if no onsite power source is required, there is no need to apply, for example, i

l Appendix B quality assurance to it or protect it in accordance with any applicable security regulations.M/ Thus, the Licensing Board was correct in concluding that the applicability of certain security requirements is affected by the nature of this exemption proceeding. See September 19 Order

[ Restricted] at 7-8.

l nd, finally, the Licensing Board correctly determined that there was no need from a safety standpoint to treat certain portions of LILCO's

offsite power supply as " vital" equipment.30/ September 19 Order M/ Although Shoreham does, indeed, have three fully operational onsite i diesels, no credit was taken for their operability or reliability during this low power exemption proceeding. Initial Decision at 8-9.

i

3_0/ The Staff's change in position with respect to the security classification of portions of the offsite power system (see September 19 Order (Restricted),

at 5) was not prompted by any change in the Staff's previously stated views (footnote continued) i

2

[ Restricted] at 7-8. The Board based this conclusion solely on an analysis of the record in the low power proceeding concerning the need far AC power during low power operation. Id. at 8-9. Consequently, the Board's conclusion that, as a matter of law, portions of the offsite power system did

! not need to be classified as vital (id. at 14) was well founded.3_1/

(footnote continued) that there was no technical need to make the equipment vital. Tr. S-281,

-285, -295 (Kasun) . Rather, the Staff was merely trying to establish

precedent supporting its proposed rule that would require onsite power sources to be vital. See Tr. S-286, -295, -296 (Kasun) . The Staff conceded i

i that, in taking its position, it had not considered that this proceeding involved a low power license, and an exemption request. Tr. S-281, -282 i

(Kasun). Contrary to the Intervenors' claim (Intervenors' Brief at 22 n.20),

lesser security requirements may be appropriate for low power operations.

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-653,16 NRC 55, 86 (1981).

31/ The Intervenors' make much of the Board's treatment of the NRC 5taff's September 11 letter to LlLCO. Intervenors' Brief at 20-22. The letter i

attempted to force LILCO indirectly to take an action at the same time that the Board was trying to decide whether that action was required by regulation.

Since the Staff previously had had ample opportunity to express its views, i the Board understandably interpreted the Staff's letter as an improper

, attempt to circumvent the Board in the event it ruled against the Staff's new position . See September 19 Order (Restricted) at 5. The Board was within its authority to warn the Staff about such end-run tactics on issues in controversy before licensing boards.

Interestingly, intervenors purport to construe the Board's warning about " intimidation by vituperation" as similarly directed at the Staff. Given the Intervanors' repeated a_d hominem attacks on the Board, however, it seems at least as logical to conclude that the comment was directed at them.

See, e.g. Suffolk County and State of New York Motion for Disqualification of Judges Miller, Bright, and Johnson, at 2-3 (calling the Judges' integrity into question), 4-5 (implying that the Board had not used " reasoned and independent judgment") (June 18, 1984); Suffolk County and State of New i York Views As to Why the ASLB's September 5 Order May Not Serve As A l

Basis for A " Phase I and ll" License (Sept. 14, 1984). The Intervenors have continued their inappropriate attacks in their brief. See, eg. , intervenors' Brief at 4, 21, 21 n.19, 22, 33, 36, 49.

The Board's conclusions with respect to each of the individual security contentions were also correct. In judging the admissibility of the contentions, the Licensing Board looked to the Commission's July 18 Order for guidance:

The Commission said that admissible contentions must be: (1) " responsive to new issues raised by LILCO's exemption request;" (2) " relevant to the exemption application and the decision criteria as set forth in the Commission's Order of May 16, 1984;" (3)

" reasonably specific;" and (4) "otherwise capable of on-the-record litigation." The Commission further explained that security issues, if any, may be litigated:

"(1) to the extent they arise from changes in configuration of the emergency electrical power system, and (2) to the extent they are applicable to low power operation . "

September 19 Order (Unrestricted] at 2-3. The Board carefully measured each contention against this guidance and properly concluded that none was admissible. September 19 Order [ Restricted] at 12-20.

i The Board recognized, correctly, that the concept of " reasonable specificity," referred to in the regulations and emphasized in the Commission's July 18 Memorandum and Order, has inherently situational aspects, including the intervenors' circumstances and the stage of plant licensing. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum and Order, slip op, at 3 (July 18,1984). What might be

! reasonably specific at the beginning of a construction permit proceeding, i

~

when the only information available to an intervenor is a copy of the Preliminary Safety Analysis Report, the issues are inherently somewhat formless, and no physical plant exists, is not necessarily reasonable when intervenors have full information, the issue arises at the end of an operating license proceeding with essentially all pertinent factual issues already resolved, the plant is a physical reality, and time is truly of the essence.

Contentions are not required, of course, to plead full-blown evidentiary detail. Nevertheless, it is incumbent on intervenors to frame their contentions with sufficient preciseness to show that the issues raised are within the scope of cognizable issues to be considered.32/ Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30,12 NRC 683, 689 (1980). Further, case-by-case judgment is inherently involved in determining whether contentions have been adequately pleaded, [d. at 687, citing Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974).33/ Thus, the Miller Board 32/ Indeed, the overall circumstances obtaining at the time contentions were filed were also recognized as relevant by another Licensing Board in

! this case, the Brenner Board, in determining whether to admit contentions.

The Brenner Board had preliminarily admitted a number of relatively generalized contentions concerning Shoreham's TDI diesel generators for discovery purposes in February 1984. Following discovery, the Board required the County to particularize its contentions in June. At a second prehearing conference on July 5, the Board excluded a number of the revised contentions because the County had failed to restate them with adequate

! particularity and basis. E.g. , Tr. 21,878, 21,885-86, 21,889-92. The Board repeatedly held that the standards for particularity and basis must take into l account the stage of the proceeding, the amount of information available to i the parties and the availability of expert assistance. E. g . , Tr. 21,685-89, l 21,735-36, 21,756-58, 21,843-45, 21,860-63, 21,884.

l 33/ Intervenors make no effort to link the facts of the cases they cite on page 23 of their brief to the circumstances here. In fact, those cases are (footnote continued) l

concluded that Such contentions must also be viewed in the context of an approved security plan resulting from the 4 parties' November 24, 1982 security settlement agreement, approved by an ASLB order entered December 3,1982. That plan is a complex, sophisticated security plan which covers all aspects of the Shoreham facility. New contentions involving i security issues must therefore plead with reasonable specificity their necessary causal connection with the

" changes in configuration" of the enhancements to emergency power, and the " extent they are applicable to low-power operation" covered by the exemption application. The Intervenors have had access to this detailed security plan for almost two years, and their contentions must reflect this high level of prior information in specifying concerns solely attributable to " changes in configuration."

J September 19 Order [ Unrestricted] at 3-4.

In sum, the intervenors fail to make any effort to show why their contentions were admissible in light of all the information available to them.34/ In contrast, the Board's careful analysis in its September 19 Order

(footnote continued) inapposite because they involve initial intervention petitions at the construction permit stage.

! 34/ Intervenors' failure in this regard is all the more egregious given the level of expert assistance available to them. Suffolk County Police i Department experts, who participated ~directly and extensively in the negotiation of the 1982 security settlement agreement, had the right of continuous access to it ever since. Further, during the process of global settlement of security issues in 1982 and in the resumption of security matters in the low-power context, Suffolk County was allowed to gain access, without objection by LILCO, for two security consultants, Brian Jenkins and Richard j White.

I 1

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of each security contention reflects proper application of the Commission's guidance as well as appropriate recognition that significant information pertinent to security has been available to the Intervenors for years. Thus, the Board's decision should not be overturned.35/

2. Security Findings Are Not Reversible Error The inclusion of five findings of fact (Initial Decision at 76-77 (H121-25)) relating to security has no impact on the validity of the Board's decision. As already noted, the Board properly rejected all of the Intervenors' security contentions. Thus, the findings of fact in question are superfluous.

Moreover, the findings are appropriate because they are based upon the record of the Shoreham proceeding. Paragraphs 21, 22 and 24 deal with the adequacy of Shoreham's existing security arrangements, which include the Security Plan and basic implementing procedures. These 3_5/ LILCO has not engaged the details of the Licensing Board's ruling on each of the proposed security contentions. First, Intervenors offer nothing but bald assertions in their brief (Intervenors' Brief at 23) and thus, a detailed reply is unwarranted. Second, a discussion of individual contentions would necessarily involve safeguards information which must be handled with the appropriate controls. Since the Intervenors' arguments are easily disposed of without such a discussion, LILCO has not delved into safeguards information. If, however, the Appeal Board wants further information, the appropriate documents are referenced on page 19, note 18, of the Intervenors' brief.

- - - - - - , + ,

arrangements were available for litigation during the operating license proceeding and ultimately resolved, following the filing of testimony but before trial, by a comprehensive Final Security Settlement Agreement (November 22, 1982). As a result, the Board was entitled to draw upon that agreement and the underlying security plan and procedures in reaching conclusions concerning security. Obviously, paragraphs 21, 22 and 24 reflect the Board's conclusions based upon a review of these documents.

Paragraph 23 embodies the Board's conclusion concerning the need to protect AC equipment as " vital." It is properly based upon the uncontested evidence in the low power record that the risk to public health and safety is substantially less at low power than at full power.

Finally, paragraph 25 merely recites the NRC Staff's position on security matters (embodied in an October 10, 1984 letter) in response to an October 2 letter from LILCO agreeing to implement certain additional security meas u res . All parties received both letters. Particularly given the reliance the Intervenors place on earlier Staff pronouncements on security, see ea, Intervenors' Brief at 20-21, it was appropriate for the Board to reflect accurately the Staff's current position, i.e., that the commitments made by LlLCO mooted any aarlier Staff concerns. That the position is reflected in a finding of fact is immaterial; it is also appropriately discussed in the text of the opinion. Initial Decision at 21.

W C. Exigent Circumstances Supported the Exemption

1. The Licensing Board Properly Excluded Diesel Generator Evidence Unrelated to the Good Faith issue in accordance with CLI-84-8, LILCO introduced evidence demon-strating that it had made a good faith attempt to comply with GDC 17, the regulation from which it sought an exemption. In general, LILCO described its acquisition, inspection, testing, repair and re-evaluation of TDI diesel generators, its acquisition of a second set of Colt emergency diesel generators to replace the TDI diesel generators if necessary, and its acquisition and installation of EMD diesel generators for use during the proposed low power testing. According to this uncontradicted testimony, 93 million dollars will be spent on the Colt project alone. Tr.1714 (McCaffrey).

Thus, it is almost tautological that LILCO has made a good faith effort to comply with GDC 17. This was clearly not a case where a utility sought to evade the applicable regulation through an exemption. Indeed, LILCO will have qualified onsite diesel generators prior to reaching full power operation.

Perhaps because it is difficult to dispute that LILCO has attempted to comply with the regulation, Suffolk County sought to change the issue. it offered the testimony of Bridenbaugh and Hubbard containing a retrospective analysis of various individual decisions LILCO had made concerning the TDI diesels. At most, the testimony showed that LILCO could

4 have avoided certain problems with its TDI diesel generators had it acted I differently at certain times. Nowhere did the testimony mention or purport to

, deal with good faith. Accordingly, the Licensing Board properly struck the testimony.3_6/

4 Black's Law Dictionary defines good faith as encompassing l- "among other things, an honest belief, the absence of malice and the absence of design to defraud or seek an unconscionable advantage .

~

. . . . Black's Law Dictionary 623 (5th ed.1979). Applying this definition to the present

case would require LILCO to demonstrate an honest belief that it intended to comply with the requirements of GDC 17. Demonstrating a lack of good faith effort requires more than a showing that, in hindsight, more or different things could have been done to avoid the problems discovered with the TDI J

, diesel generators. Essentially, Suffolk County attempted to build a case based on negligence, not lack of good faith.

l l 36/ Although not the basis of the Board's decision, there were also other

! grounds for striking this testimony. First, Bridenbaugh and Hubbard sought in large part to base their opinions on LILCO's alleged negligence with respect to its quality assurance program for the diesels. Yet, the Brenner 1 Licensing Board had already determined that LlLCO's quality -

, assurance / quality control program for safety related equipment complied with NRC regulations. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP,-83-57,18 NRC 445, 579 (1983). Second, neither

, Hubbard nor Bridenbaugh had any experience in designing, operating or maintaining a diesel generator that would permit them to reach the proffered conclusions in their testimony concerning the significance of alleged design and equipment failures, the adequacy of LILCO's investigation of the failures and the timing of LILCO's purchase of the Colt diesel generators. See Tr.

2175-2182, 2186-2188 (Bridenbaugh, Hubbard).

4

. - , - .yw.-- . - , , - - ,--se--,,e--_.-,.. -,.cw-,. -,ww-, i,.-,,-w.,-.s.,,,,m-,e. ,-rr-,, --=.,-,---r--.,--.-a-,.mv-3e g- y-

The conceptual distinction between negligence and lack of good faith is well recognized. Good faith is measured by the actual state of mind of the party, not the objective " reasonable person" standard in negligence.

See, e.g., Eldon's Super Fresh Stores, Inc. v. Merrill Lynch, Pierce, Fenner

& Smith, 296 Minn.130, 207 N.W.2d 282, 287 (1973); Snook v. Netherby, 124 Cal. App.2d 797, 269 P.2d 195,198 (1954).31/ Conversely, bad faith is not simply bad judgment or negligence. Vickers v. Motte,109 Ga. App. 615,137 S.E.2d 77, 80 (1964). In particular, a failure to inquire, even in reasonably suspicious circumstances, does not demonstrate a lack of good faith. Appel

v. Morford, 62 Cal. App.2d 36,144 P.2d 95, 97 (1943). Only a purposeful or intentional attempt to evade knowledge would show a lack of good faith. See, ea, Fenner v. American Surety Co. of New York,156 S.W.2d 279, 282 (Tex. App. 1941).

NRC decisions also recognize the fundamental distinction between negligence and a lack of good faith, in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-56,16 NRC 281 (1982), a supervisor responsible for grading an examination changed several answers on the key, 37/ Courts have consistently distinguished a lack of good faith from negligence in many different legal contexts. See, ea, Wooley v. Standard Oil Co., 230 F.2d 97,104 (5th Cir.1956) (good faith effort at payment for oil and gas leases found without regard to whether negligence involved);

National Casualty Co. v. Caswell, 317 Ill. App. 66, 45 N.E.2d 698, 699 (1941)

("a thing is done in good faith when it is done in fact honestly whether it be done negligently or not." (quoting Uniform Fiduciary Act)); Moore v.

Commissioner of Internal Revenue,101 F.2d 704, 706 (2nd Cir.1939) (good faith requirement satisfied so long as act not taken with a view toward defeating purpose of the law).

to the benefit of employees taking the test. Although the changes were incorrect and unwarranted, they did not demonstrate an absence of good faith. [d. at 332-33. Nor is an " honest error in judgment" ground for a finding of bad faith. See Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167,1172 (1983).

The Licensing Board properly recognized the difference between the negligence issue the County sought to litigate and the good faith issue delineated by the Commission. Tr. 2385-89. Thus, it properly excluded the County's evidence that was not directed at the issue in controversy.

2. The Licensing Board Properly Considered the Length and Cost of the Shoreham Operating License Proceeding LlLCO introduced testimony that it has been enmeshed in this operating license proceeding for more than eight years with massive discovery and protracted hearings. Tr.1715-26 (McCaffrey) . The process has placed extraordinary demands on LILCO in terms of both time and r.esources. For example, at the time the low power testimony was filed, there had been almost 15,000 pages of prepared testimony, over 180 days of evidentiary hearings held and more than 34,000 pages of transcript accumulated. These totals have since increased substantially. As of the date the testimony was proffered, the licensing proceeding had cost LlLCO more than 33 million dollars. Tr.1727 (McCaffrey). In short, LILCO has been subjected to one of the most protracted licensing proceedings in NRC history. Tr. 1729 (McCaff rey) .

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The Board recognized that "[t]he costs of unusually heavy and I protracted litigation may also properly be considered in evaluating financial or economic hardships . . .." initial Decison at 62. Contrary to the I Intervenors' intimation, the Board did not find and LILCO did not contend that the licensing proceedings contravened NRC regulations.38/ Instead, the Board found that "[t]he unusually heavy financial and economic hardships associated with the very protracted Shoreham licensing proceedings constitute a significant equity . . . ." Initial Decision at 63. It would be difficult to quarrel with the conclusion that the licensing proceedings have imposed a significant burden on all parties involved. Even a cursory glance at the record before the four different licensing boards, this Appeal Board and the Commission, would inexorably lead to that conclusion.39/

3. The Licensing Board Properly Considered Inconsistencies in the Regulations' interpretation and Application The Commission instructed that another equity to be considered was any internal inconsistency in the regulation. LILCO argued that the regulations themselves were inconsistent and that they were inconsistently i

38/ The Board specifically stated "[i]t is beside the point to argue that such litigation is permitted under NRC regulations." Initial Decision at 62.

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39/ Moreover, this finding cannot be taken in a vacuum. It was only part

of the basis for the Board's public interest and exigent circumstances i conclusions. Significantly, none of the factors considered weighed in favor i of delay. Thus, even if the Licensing Board should have ascribed less or no

weight to a particular factor, the overall result would not change.

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applied. The Licensing Board agreed that they had been applied l inconsistently. Initial Decision at 63-66.g/ The Board found that LILCO has been subjected to new requirements for gaining an exemption when other plants had not even been required to seek exemptions in the face of I temporary conditions of non-compliance with the regulations. Id. at 64-65.

The Licensing Board also noted that two other facilities, Catawba and Grand l l

Gulf, with unresolved questions about similar TDI diesel generators had received low power and full power licenses. Id. at 65. Again, all things  ;

being equal in terms of safety, fairness dictates that the exemption be granted when the regulations are ambiguous and when LILCO has had to meet a tougher standard than other plants even to get an exemption.

Though such considerations were not expressly covered by CLl-84-8, they are closely related to the Commission's ruling that internal inconsistencies could be considered. Certainly the Commission did not expect

@/ The Licensing Board did not mention the internal inconsistencies in the regulation, but could have relied on this as finding yet more " equity" in LILCO's favor. The record in this case demonstrates the inconsistency between 10 CFR S 50.57(c) providing for interim low power licensing, and the General Design Criteria which do not expressly permit consideration of the operating conditions. Indeed, the NRC Staff initially asserted and the Licensing Board agreed that GDC 17 should be harmonized with 5 50.57(c) since those regulations were otherwise ambiguous and inconsistent. See Long Island Lighting Co. (Shoreham Nuclear Generating Plant, Unit 1),

Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for Low Power Operating License, slip op. at 6-7 (April 6,1984). The Commission did not rule until May 7 that GDC 17 was not to be harmonized.

CLI-84-8,19 NRC 1154. Despite that May 16 order, the regulations remain ambiguous and inconsistent. As importantly, their application is pointless here where strict interpretation of GDC 17 has been shown to be unnecessary to protect public health and safety.

I c

its Order to be exhaustive. Thus, these other material considerations were appropriately considered in ascertaining the public interest.4_1/

i 5

D. The Licensing Board Correctly Found the "As Safe As" Standard Met 4

Intervenors argue that the Licensing Board erred in making its ,

l determination that operation of Shoreham at low power under the conditions proposed by LlLCO will be as safe as operation would have been with fully qualified diesels. Significantly, nowhere in the intervenors' brief is there any supportable claim that operation of Shoreham as proposed by LILCO presents any risk to the public health and safety. Moreover, as demonstrated below, the claims that are advanced by the Intervenors lack 1

merit.

4 41/ The Intervenors also complain because there was no evidence of such

_ prior Staff practices in the record. LlLCO relied on materials in the public

record which were equally accessible to the Intervenors. Thus, LILCO relied i on Federal Register notices and other Staff publications. For example, a review of notices of exemptions shows a lack of any discussion of public interest considerations or exigent circumstances. E.g., Consumers Power

- Co. (Big Rock Point Plant), Exemption, 49 Fed. Reg. 11,269, 30,611, 30,613 T1984); Boston Edison (Pilgrim Nuclear Power Station), Exemption, 49 Fed.  ;

Reg. 28,483 (1984); Nebraska Public Power District (Cooper Nuclear Station),

i Exemption, 49 Fed. Reg. 28,487 (1984); Toledo Edison Co. and The Cleveland Electric illuminating Co. (Davis-Besse Nuclear Power Station, Unit No.1),

Exemption, 49 Fed. Reg. 31,352 (1984). Apparently, the prevailing practice

has been to grant an exemption where it poses no undue risk to the public health and safety. Another example is the fact that both Catawba and Grand Gulf have unresolved questions about TDI diesel generators and have received low power and full power licenses, respectively. See Catawba Nuclear Station, Unit No.1 issuance of Facility Operating License, 49 Fed.

Reg. 30,611 (1984); Grand Gulf Nuclear Station, Unit 1 issuance of Facility Operating License, 49 Fed. Reg. 44,568 (1984).

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. - . , , . - - ,--._,---%--,_,,,,_mv- _ .-----_-v . ,-_,~.,,_,-m _,,.__w,,m. _., , . . - , - ,,my,,., ,

1. The Licensing Board Properly Excluded PRA Testimony Suffolk County proffered testimony purporting to compare the safety of LILCO's proposed alternative power system to qualified diesel generators. This testimony was based upon a draft PRA. Pursuant to the NRC's rules of practice, LlLCO moved to strike this testimony. LlLCO's Motion to Strike Testimony of Robert Weatherwax, Mohamed El-Gasseir and Gregory Minor on Behalf of Suffolk County (July 27,1984) (Weatherwax, et al. )42/

The testimony in question was based on a quantitative comparison of the probability of Shoreham reaching a state of core vulnerability (as defined by LILCO's contractor Science Applications, Inc. in Probabilistic Risk Assessments for the Shoreham plant) due to loss of offsite power, during operation at five percent power, assuming operation

.vith the alternate system and assuming operation with the originally proposed qualified on-site power system.

Weatherwax, et al. , at 4. The Board, however, properly excluded this testimony after oral argument because of the Commission's directed policy against the use of probabilistic risk assessments as a basis for licensing

, 42/ LILCO's motion listed several independent grounds for striking the

_ testimony: (1) a probabilistic risk assessment is not required for licensing, (2) the witnesses are not qualified to offer the opinions contained in their

. testimony, and (3) the testimony is inadmissible hearsay because it is based on a draft study that was not performed by any of the witnesses.

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nuclear power plants. Tr. 2857-58. The Commission's Policy Statement on Safety Goals for the Operation of Nuclear Power Plants states:

The qualitative safety goals and quantitative design objectives contained in the Commission's Policy Statement will not be used in the licensing process or be interpreted as requiring the performance of probabilistic risk assessments by applicants or licensees during the evaluation period. The goals and objectives are also not to be litigated in the Commission's hearings. The staff should continue to use conformance to regulatory requirements as the exclusive licensing basis for plants.

48 Fed. Reg.10,772, at 10,775 (col. 3) (1983) (emphasis added).43/' Thus although PRAs may be useful tools for making management decisions in nuclear power plants or for other purposes, the NRC itself has decreed that, at present, they are not required nor are they to be used as a basis for licensing plants.

Significantly, one of the reasons the Commission has not yet embraced PRAs as a basis for licensing plants is the difficulty in developing appropriate standards:

l 4_3/ The Shoreham Licensing Board chaired by Judge Brenner also recognized that the deterministic approach of the Commission's regulations remains the sole basis for licensing nuclear power plants:

! Commission policy dictates that the Staff should continue to use conformance to regulatory requirements as the

exclusive licensing basis for plants. (Emphasis added).

Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

LBP 57,18 NRC 445, 573-74 (1983) (emphasis in original; footnote omitted) ,

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[B]ecause of the sizable uncertainties still present in

! the methods and the gaps in the data base --

t essential elements needed to gauge whether the objectives have been achieved -- the design objectives should be viewed as aiming points or numerical benchmarks which are subject to revision.

48 Fed. Reg.10,772, at 10,774, col.1 (1983). And yet, in the risk assessment presented by 'the Suffolk County witnesses, the licensing board 5 was asked to compare an alleged difference in core vulnerability from loss of offsite power events of .44 x 10-6 per year for the TDI diesel generators to 3.3 x 10-6 per year for the current AC power configuration. Weatherwax, et al. , at 10. The Commission's caution in embracing PRAs reflects the r difficulty in comparing such infinitesimal numbers and drawing any meaningful conclusions. Consequently, the Board's decision to exclude the i County's proposed PRA testimony was factually sound and fully consistent j with NRC's policy on the use of PRAs in licensing proceedings.4_4/

4_4/ The Intervenors' argument that use of PRA in licensing proceedings is appropriate because litigation of the Shoreham PRA was permitted in the I

Shoreham operating license case (reviewed by the Appeal Board in ALAB-788,

20 NRC (Oct. 31,1984)) is not persuasive. During discovery in the

- operating license proceeding, the draft version of the Shoreham PRA was

! provided to Suffolk County over LILCO's objection. Moreover, it was the i

County that injected PRAs into the licensing proceeding by raising matters relating to the adequacy of Shoreham's PRA in their direct testimony on l Suffolk County Contention 7B. LILCO merely responded to these allegations t

and proved that the Shoreham PRA was a state of the art effort. LILCO, however, never wavered from its position that PRAs are not required for i

licensing nuclear power plants. Ultimately, the Brenner Board agreed that the NRC's regulations, not PRAs, are to be used as the exclusive licensing basis for nuclear power plants.

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In addition, although a basis not relied upon by the Licensing Board, the County PRA testimony was inadmissible and unreliable hearsay evidence. While hearsay is not generally inadmissible in NRC proceedings, the witnesses relied principally on a draft study that they did not prepare and of which they had no personal knowledge. That document was a draft entitled "Probabilistic Risk Assessment, Shoreham Nuclear Power Station, Low Power Operation Up To 5% of Full Power" (Iow power PRA), prepared by Delian Corporation and Science Applications, Inc., for LILCO.45/ _

Weather $ax, et al. , at 6-7. Because the witnesses had no personal knowledge of the assumptions, parameters and methodology employed in the low power PRA, they could not be cross-examined upon those subjects. For example, on page 9 (note 1) and in Attachment E of their testimony, the witnesses indicate that they do not know whether certain assumptions about repairing diesel generators had been made in the low power PRA or the sal

(

PRA. On page 8 of the testimony, the witnesses clearly speculated about'the source of the data used in the low power PRA. This lack of knowledge concerning the low power PRA is compounded by the fact that the document, i

on its face, is a draft. Thus, given the uncertainties concerning the results of PRAs that have been recognized by the Commission in its safety goal deliberations, and given the hearsay nature of the testimony, it would have 45/ The witnesses also claimed to rely on another probabilistic risk Ts'sessment for Shoreham, dated June 24, 1983, entitled " Final Report, Probabilistic Risk Assessment, Shoreham Nuclear Power Station" (sal PRA).

This document was prepared for LlLCO by Science Applications, Inc. See Weatherwax, et al., at 7-8.

_44 been appropriate for the Licensing Board to exclude the PRA testimony as unreliable.

Finally, even if the Board erred in excluding Suffolk County's PRA testimony, it was harmless error. This Appeal Board could accept as true the conclusions reached by the County's consultants and still conclude that operation of Shoreham as proposed by LILCO during low power operation will be as safe as operation with qualified diesel generators. The County's testimony concluded that the core vulnerability frequency from loss of offsite power events was .44 x 10-6 with qualified diesels and 3.3 x 10-6 with the current AC power configuration. Thus, the difference in risk to the public from these two proposals, even taking as true everything the County's witnesses claimed, is only 2.86 x 10-6.46/ Given the uncertainties associated with -PRAs that have been acknowledged by the Commission itself, it is perfectly appropriate to conclude that the two alternatives provide an equivalent level of safety and that operation of Shoreham as proposed by LlLCO would be "as safe as" operation with qualified diesel generators.

46/ The intervenors' brief attempts to hide the fact that there is essentially no difference between the two alternatives by claiming that operation under LILCO's proposal would be seven times more risky than operation with qualified diesel generators. Given the extremely small magnitude of absolute

.value of risks in question, the comparison is meaningless. Moreover, the reference to "seven times more risk" refers to the witnesses' conclusions as to only one event -- loss of offsite power. It is much more appropriate to compare the overall risk to the public in the two alternative cases. Using the County's testimony, the alleged overall risk to the public at low power for Shoreham with qualified diesels is 2.04 x 10-6 while the alleged risk from LILCO's proposal is 4.9 x 10-6. See Weatherwax, et al., at 11. In either event, the absolute value of the difference in the risk -- 2.86 x 10-6 per year

-- is too small to be meaningful when considering a low power testing program

-that will only last several months.

2. The Licensing Board Properly Applied the "As Safe As" Standard The Intervenors attack the " Board's interpretation and application of the Commission's [as safe as] standard." Intervenors' Brief at

36. To the contrary, it is the intervenors who have erred in construing the standards governing exemptions. The legal standard for assessing health and safety issues is that the exemption "will not endanger life or property."

10 CFR S 50.12(a). There is no "as safe as" requirement in the regulation.

Indeed, it would be nonsensical to include such a requirement as interpreted by the Intervenors. if "as safe as" means " identical," exemptions would be unattainable or unnecessary. Section 50.12(a) would be a superfluous regulation.

The Commission's May 16 order did not change the basic legal standard for S 50.12(a) or establish any new standard. It said in pertinent pa rt:

In addressing the determinations to be made under 10 CFR 50.12(a), the applicant should include a l discussion of the following:

l

2. Its basis for concluding that, at the power levels for which it seeks authorization to operate, operation would be as safe under the conditions proposed by it, as operation would have been with a l

fully qualified onsite A/C power source.

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CLl-84-8,19 NRC 1154,1155-56 (emphasis added). Thus, neither the

regulation nor the Commission's Order establishes "as safe as" as a rigid standa rm against which LILCO's exemption request must be measured.

Instead, the Order requires a discussion of LILCO's claim that operation would be "as safe as" operation of a plant with qualified diesels. The "as safe as" comparison using applicable deterministic criteria was LILCO's .

2 method of proving that the exemption will not " endanger life or property."

Accordingly, detailed parsing of the phrase "as safe as" is particularly inappropriate. K Even if "as safe as" were a legal requirement, the intervenors' arguments are nothing more than semantic quibbling. They criticize the Board's view that "as safe as" means "a comparable level of protection."

Intervenors' Brief at 36. Yet, according to Webster's, " comparable" means h equivalent, similar." Webster's Ninth New Collegiate Dictionary 267 (1984).

The Intervenors instead would impose a requirement that the alternate pov;er ~

e sources " fully measure up to" a qualified system. Intervenors' Brief at 36.

Semantics aside, proving that the proposed mode of operation wit! a fully qualified onsite power source requires some showing of overall equivalence in the safety of plant operation, but not the identity of individual power ,

1 l sou rces .

In fact, the feature-by-feature comparison championed by the '

, f 1

intervenors in their brief does not render a meaningful comparison of the

, i l safety of operation during low power testing. Such a myopic comparison l; l

would disregard the reduced power needs at low power, the vastly increased e

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time within which power need be provided and the potential for AC power to be restored from the normal offsite system (a potential unavailable at full power, where AC power is needed within seconds). See, e.g. , initial Decision at 80 (H 34-36), 82 (HH 45, 46), 83 (HH 49, 51). Requirements for a qualified onsite power source are set for full power operation. Many of them are unimportant for low power operation when there is a lower risk due to reduced potential consequences and greater time to react. The Intervenors ignore this crucial distinction.

In addition to these fatal flaws in the Intervenors' reasoning, their arguments with respect to the application of the "as safe as" standard lack merit for other reasons. These arguments, though not separately addressed in the Intervenors' brief, are discussed separately below for the sake of clarity.

a. S 50.47(d)

The argument that "the use of the alternate AC power configuration would undercut completely the rationale underlying 10 CFR S 50.47(d)," Intervenors' Brief at 37, has no basis in fact or law. To the contrary, the basic assumptions underlying 10 CFR S 50.47 have not been undermined by the Licensing Board's "as safe as" determination. The Commission relied upon three factors in concluding that the risks associated with low power operation were substantially lower than those of continuous full power operation:

First, the fission product inventory during low power testing is much less than during higher power operation due to the low level of reactor power and short period of operation. Second, at low power there is a significant reduction in the required capacity of systems designed to mitigate the consequences of accidents compared to the required capacities under full power operation. Third, the time available for taking actions to identify accident causes and mitigate accident consequences is much longer than at full power.

47 Fed. Reg. 30,232, 30,233 (col.1) (1982); see 46 Fed. Reg. 61,132, 61,132-33 (1981). These assumptions remain valid. First, the fission product inventory during low power operation is not affected by LILCO's proposal; it remains substantially lower than at full power. Tr. 299-300

( Rao) . Second, there is still a reduction in the required capacity of systems designed to mitigate accidents. Tr. 300-301 (Rao) . Those systems are simply powered by different sources to the extent they are needed at all.

Third, there remains more time available to react to a low power accidant.

Indeed, the record establishes that absent a LOCA, AC power is not needed l for at least 30 days. Tr. 301 (Rao). Even if an unlikely LOCA occurs, realistic analyses show that more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> are available during Phase 111 i

and more than 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> during Phase IV to restore AC power. Tr. 307 l

l (Rao) .47/

47/ The 55 minute number used throughout the initial Decision is an unrealistically low number that was developed in some of LILCO's preliminary analyses. Tr. 308 (Rao) . But even using this very conservative number the Board was able to conclude Shoreham meets the "as safe as" standard.

Importantly, there was no mathematical precision included in the Commission's del:berations on S 50.47(d). Nor was there any discussion of margin requirements. Thus, the fact that the required mitigation capacity at one plant may vary between low power and full power by a different amount than at some other plant is of little moment. Similarly, the fact that margins are allegedly different for Shoreham with its enhanced offsite power than from a plant with qualified diesels is not important; what is significant is that the basic concepts underlying S 50.47(d) are retained.

Finally, Intervenors' S 50.47(d) arguments must fail because, after careful consideration of the record, the Board did conclude that Shoreham's proposed mode of operation would be as safe as operation with qualified diesels. Initial Decision at 55.4_8/

b. Margin of Safety l The Miller Board found that the peak cladding temperature from a LOCA at 5% power with the alternate system would be 1086 F as opposed to l

l 550 F with TDI diesels. Both figures are well under the regulatory limit of 2200 prescribed by S 50.46.49/ Based upon this difference, the Miller Board 48/ In fact, in determining how Shoreham stacks up to other plants that are

licensed under S 50.47(d), several factors make the plant more safe than one l that meets the minimum requirements of the regulations. See Initial Decision at 46 (Shoreham exceeds requirements of GDC 17); page 51 below (LlLCO commitments to reduce risk during low power testing).

4_9/ Initial Decision at 81 (H 39). This conservatively assumes that it takes 30 minutes to restore power for the alternative configuration. Id. Power is likely to be restored much more quickly. See note 53 below.

stated that there was a " lesser margin of safety" but found that difference inconsequential. Initial Decision at 39. The Intervenors rely on this statement taken out of context and argue that it was inconsistent with the Board's ultimate conclusion. Intervenors' Brief at 37. Yet, the traditional deterministic approach employed for safety analyses in NRC proceedings demonstrates the ability of the Shoreham plant in both the normal and alternate configurations to withstand postulated accidents and transients and remain within specified operational limits.50/ If these limits are met, the plant is deemed safe. The uncontroverted testimony in the proceeding demonstrated that the operational limitations of the NRC's regulations are set conservatively and already incorporate a safety margin.5_1/ Contrary to the Intervenors' suggestion, the NRC's regulations do not include a requirement that any given margin to the operational limits be maintained.52/ Since LILCO's proposed low power testing program will be performed within operational limits, even assuming the postulated accidents and transients in 50/ As the record reflects, a loss of coolant accident is the worst case event for low power operation. Initial Decision at 33. Thus the pertinent operational limits are specified in 10 CFR S 50.46. Of the limits set in this regulation, the 2200 F bound on peak cladding temperature is generally the limiting parameter. Initial Decision at 78 (H 30).

5_1/ For example, a plant could exceed the 2200 peak cladding temperature (PCT) limit of 10 CFR S 50.46 by 500 and still not result in adverse public health and safety consequences. Initial Decision at 37-39.

52/ Just as different nuclear plants are not deemed more or less safe because of variations in the predicted PCT following an accident, so to is it inappropriate to conclude that Shoreham's alternate AC power proposal is less safe because PCT may be higher than with qualified diesels, where both are within the limits of S 50.46.

Chapter 15 of the Final Safety Analysis Report (FSAR), operation will be as safe as it would have been with a qualified onsite AC power source.

Importantly, even if margin below regulatory limits is reduced, such reductions are more than offset by measures that LILCO will take to reduce risk during low power testing. For example, LILCO has made commitments to suspend low power testing under certain conditions which might affect the availability of AC power. Initial Decision at 44-45, 85-87 (H 61). These actions would not ordinarily be taken during low power testing with qualified diesels. Moreover, a number of additional license conditions and technical specifications were imposed on Shoreham (see, n, Staff LP Ex. 2 at 8-2 to 8-8) to ensure that operation with LILCO's enhanced offsite 1

power system is at least as safe as operation with qualified diesels. These additional requirements provide yet further support, contrary to Intervenors' l

suggestion (Intervenors' Brief at 42 n.32), for an "as safe as" finding.

l

c. Restoration of AC Power The Intervsnors also claim that the Miller Board erroneously rejected the argument that Shoreham is not as safe as a plant with qualified diesels because it cannot provide emergency power to safety loads within 15 1

seconds. Intervenors' Brief at 38. But this claim ignores the greatly increased time available to act before exceeding pertinent operational limits l

and finds no support in the regulations or in the record. Regulations do not prescribe time limits for restoration of power; they set operational limits which may not be exceeded. Thus, in assessing or comparing safety, one

need only determine whether operation will be within the prescribed limits. It stands to reason that in assessing the safety of a plant, consideration must be given to the circumstances surrounding the need for certain pieces of equipment. Here, even using extremely conservative analyses, operational limits would be met at So power if AC were restored within 55 minutes following a LOCA. Initial Decision at 38. Absent a LOCA there would be more than 30 days to restore AC power. Initial Decision at 34-35. There is simply no reason to be concerned with restoring power to the plant within 15 seconds in order to ensure its safety.53/

d. Seismic Capability The Intervenors argue that LILCO's proposal for low power operation is not as safe as operation with qualified diesels because qualified diesels would have a higher resistance to seismic events than does the system proposed by LILCO. Intervenors' Brief at 37-38. The County, however, ignores the lack of any need for seismic resistance. As the uncontested record reflects, during low power operation, the plant would have essentially unlimited time to restore AC power following a seismic event. Consequently, the seismic capabilities of the alternative power supplies are irrelevant.M/

53/ The County's brief is misleading in suggesting that "under LILCO's l alternate configuration 30 minutes of that time (as opposed to 15 seconds) could be necessary before any power is available . . . ." Intervenors' Brief at 38. As the record reflects, actual testing has demonstrated that power can be available from a 20 megawatt gas turbine in approximately four minutes, from the four EMD diesels in approximately nine minutes, and from a myriad of other offsite power sources in from six to twenty-five minutes. Initial Decision at 89 (H73), 82 (HH 45, 46), 83 (SH 49, 51).

M/ In any event, the Licensing Board found that the alternate power supplies have significant seismic capabilities, initial Decision at 51-52.

initial Decision at 54-55.

e. Other Examples The Intervenors select six examples in which the Board allegedly ignored facts set forth by Suffolk County's experts which contradict the Licensing Board's conclusions. None ;# these examples, however, supports a conclusion that the Licensing Board's decision was erroneous.55/

(1) The Intervenors claim, without any citation to the record, that

"[t]he alternate configuration contains only two power sources, whereas qualified configuration contains three power sources." Intervenors' Brief at

40. Although it is difficult to engage the Intervenors' argument without knowing precisely upon what portion of the record it relies in support of its conclusions, it is abundantly clear that the Board knew and considered how many power sources were available and how they would be used. Initial Decision at 39-50.

l 55/ A number of these examples incorporate by reference the County's l proposed findings of fact. Incorporation by reference is inappropriate.

Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1),

ALAB-424, 6 NRC 122,127 (1977). In particular, the use of proposed findings of fact in lieu of a brief is a ground for striking the brief. Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2),

ALAB-394, 5 NRC 769, 770 (1977); Public Service Co. of Oklahoma (Black Fox l Station, Units 1 and 2), ALAB-573,10 NRC 775, 805 (1979). Thus, these i findings should not be considered by the Appeal Board. If the Board does consider them, however, it should also consider LILCO's replies to those findings which highlight their defects. Each section below will include the appropriate references to LILCO's reply findings.

54-I (2),(3) The Intervenors' claim that the alternate system proposed by I

LILCO is subject to single failures. The Board, however, expressly engaged the single failure issue. Initial Decision at 50-51. The Board found the County's evidence largely irrelevant because it focused on single failures that might disable the EMD diesels. But the record clearly reflected that the EMDs and the 20 MW gas turbine were planned as a system. Id. at 51.

Single failures that would affect the EMDs would not affect the gas turbine and vice versa.56/ Id.

(4) The Intervenors complain that the Board failed to consider that LILCO's alternate configuration requires manual action as compared to a " fully automatic" qualified system. Intervenors' Brief at 41. To the contrary, the Board did recognize that manual operation was necessary. Initial Decision at 89 (1 73). It found, however, that a "[d]emonstration showed that power could be restored to plant systems from the gas turbine in 'four minutes and from the EMDs in nine minutes (Clifford, Tr. 1852)." ld.

Coupled with the uncontradicted evidence that power would never be needed in anything less than fifty-five minutes, see Initial Decision at 80 (V 36), there was ample basis for the Board's conclusions concerning the equivalent level of safety between LILCO's proposed system and qualified diesel generators.5_7/

5_6/ LlLCO Reply Findings 27-33, 84-88 discuss the defects in their findings cited by the Intervenors in this portion of their brief.

57/ Again, intervenors attempt to incorporate proposed findings by reference. LILCO's Reply Findings 40-43 and 72-80 demonstrate why it was appropriate to reject these findings.

(5) Next, the Intervenors claim that the Board ignored evidence concerning the seismic capabilities of LILCO's AC power sources.

Intervenors' Brief at 41. Again, they are wrong. The Board engaged the seismic issue and concluded that during low power operation it would not be necessary for the enhanced offsite system to withstand a seismic event and that, in any event, the system has substantial seismic capability and would likely " survive a seismic event with little if any damage." See Initial Decision at 51-55.58/

(6) Finally, the Intervenors complain that the Board ignored alleged fire protection deficiencies with the EMD diesels. Intervenors' Brief at 41-42.

1 In fact, though, the Board did find that the EMDs had less fire protection equipment than a qualified diesel. Initial Decision at 88 (V 69). But the Board also found The EMDs are sufficiently reliable in view of their function as a backup for all other available power sources, as the failure of all other sources of AC l power must be assumed before the EMDs would be called upon for emergency power.

. Initial Decision at 88 (H 70). It was also appropriate for the Board to l

discount substantially the County's evider.ce concerning the vulnerability of the EMDs to fires. The County's witnesses had no knowledge of the operating experience with EMDs in the industry or whether any fires had l

58/ LILCO Reply Findings 6 and 8-18 highlight the deficiencies in the l

proposed findings cited in this portion of the Intervenors' brief.

l

ever been encountered. Tr. 2419, 2422-23, 2486-87 (Smith, Eley). Indeed, fires are very rare on EMD diesel generators. Tr.1183 (lannuzzi, Lewis) .59/ Finally, as the Board recognized in the context of single failures, loss of the EMDs would still leave the 20 MW gas turbine available for use in an emergency.60/ See Initial Decision at 50-51.

3. The Licensing Board Properly Considered the Offsite Power System Although a loss of offsite power must be assumed for analytical 1

purposes, LILCO's normal offsite system is designed to make such an event extremely unlikely. Indeed, many facets of LILCO's normal offsite power system exceed those required by GDC 17. Initial Decision at 40-46, 82-87 (HV 43-49, 51, 54-59, 61,62); Tr. 2353-54 (Knox); Tr. 488-89, 508, 514-519 (Schiffmacher) . Thus, it is less likely that LILCO would suffer a loss of offsite power than would a plant operating with qualified onsite and offsite power sources satisfying the minimum requirements of GDC 17.

Consequently, to ignore LILCO's offsite power system in the analysis of LILCO's exemption request would set a higher safety standard for Shoreham l

l since it would eliminate any credit for its superior offsite system.

l 55/ The County witnesses had failed to consider design differences such as low pressure fuel lines that reduce the EMDs' vulnerability to fires. Tr.

2485-86 (Smith) .

60/ LILCO Reply Findings 34-39 and 71 and LILCO's Reply Brief at 23-24 describe the errors in the proposed findings cited in this portion of the Intervenors' brief.

Equally important, the reliability of LILCO's normal offsite system and the correspondingly low probability that AC power will be lost are important components in the safety equation. In the extreme case, if system reliability was 100%, differences between the enhanced system and qualified diesels would be totally irrelevant. The effect of an unusually reliable offsite system is to lessen the significance of differences, if any. Also, given the time available to restore AC power in an accident, a highly reliable system may remove the need to rely on the enhanced power system. Uncontradicted testimony demonstrated that offsite power could be restored from numerous sources well within the time available to mitigate a LOCA at 5% power. Initial Decision at 41, 42, 82 (HH 45, 46), 83 (HH 49, 51, 52) . At full power, AC power is needed in seconds, thus making the normal offsite systems' capability for restoring power inconsequential. At low power, however, with its longer time frames, this capability is significant. Thus, the Board properly considered that LILCO's normal offsite system (1) provides numerous and independent generation sources and transmission paths, (2) has historically proved highly reliable, (3) can restore power to Shoreham within minutes and (4) exceeds the offsite requirements of GDC 17. Initial Decision at 40-46.

Finally, though the Board did reach conclusions concerning the normal offsite system, it independently concluded that the enhanced offsite system (EMDs and 20 MW gas turbine) met the "as safe as" standard:

We find that there is adequate assurance that the enhanced system can supply sufficient power within 55 minutes in the event of a concurrent LOCA and loss of offsite power. We therefore further find that the enhanced system provides a comparable level of protection as a fully-qualified system would and thus meets the "as safe as" standard set by the Commission in CLI-84-8.

Initial Decision at 55 (footnotes omitted). Thus, the Intervenors' complaints about consideration of the offsite system are not well taken.

E. There is No Reversible Error in the September 5 Order Granting A License to Conduct Phase I and Phase II Activities

1. The issues Raised Are Moot More than fourteen pages of Intervenors' Brief (pp. 43-57) are devoted to the argument that the September 5 order (LBP-84-35A, 20 NRC 920) approving a license for Phases I and 11 is erroneous -- as opposed to only eleven pages devoted to all of the alleged health and safety issues.

Though clothed in many different terms, the Intervenors essentially contend (1) that in awarding summary disposition, the Licensing Board improperly interpreted and applied the Commission's May 16 order, and (2) that there is no authority for issuance of a license limited to Phases I and ll activities.

These issues are, however, moot.

l L. . .

l By challenging the September 5 order, the Intervenors are l simply challenging the award of a Phase I and 11 license without the public interest findings necessary for an exemption. Yet, on October 29, the Board issued its initial Decision which reaffirmed the September 5 order and made public interest and exigent circumstances findings. Although LILCO firmly believes that the Boara acted properly in issuing its September 5 order, the findings and conclusions in the initial Decision moot any alleged error in granting the Phase I and ll license by summary disposition. Similarly, any contention that a Phase I and 11 license cannot stand alone has been mooted since a license for Phases I through IV has now been authorized by the initial Decision.

'2. There Was No Error in the September 5 Order

a. The September 5 Order is Consistent with CLl-84-8 The uncontested record established that none of the postulated accident and transient events have any consequences during Phases I and ll, even assuming no onsite AC power source. 20 NRC at 924-26. Consequently, the pending diesel generator contentions are immaterial to reasonable assurance that Shoreham could be operated during Phases I and 11 without endangering public health and safety. Thus, no exemption from GDC 17 is required.

By its terms, GDC 17 requires that an onsite power source provide sufficient capacity and capability to assure that (1) specified acceptable fuel design limits and design conditions of the reactor coolant pressure boundary are not exceeded as a result of anticipated operatic,nal occurrences and (2) the core is cooled and containment integrity and other vital functions are maintained in the event of postulated accidents.

10 CFR Part 50, Appendix A, General Design Criterion 17 (emphasis added).

For Phases I and 11, that necessary AC power is undisputedly zero.

Therefore, the degree of reliability of LILCO's onsite power source is immaterial. Stated differently, there is no need for any degree of diesel generator reliability in order to meet the " sufficient capacity and capability" standa rd. If the regulation requires no performance by a system which does in fact exist, no exemption from that regulation is needed while the reliability of that system is subject to pending proceedings.6_1/

61/ Intervenors' Brief at 51 contends, without citation to authority, that GDC 17 requires an " operable" onsite power system at Shoreham. The regulation requires only an onsite system necessary to meet the specified functions. It is important to distinguish Phases I and 11 from Phases lil and IV in this regard. When the Commission was considering whether an exemption was needed to conduct low power testing, its primary focus was upon the need to harmonize GDC 17 with 10 CFR S 50.57(c). May 7,1984 Oral Argument, at Tr. 9, 13-16, 40-44, 49, 61-65, 71-75, 83-84, 87-89, 101-107, 119-129. The Commission was concerned about allowing the Staff or a licensing board unbridled discretion in harmonizing the regulations without invocation of a formal exemption process. If absolutely no AC power is i needed, however, there is no judgmental or discretionary application of the l General Design Criteria.

l The Intervenors' argument that the Commission reaffirmed the applicability of CLl-84-8 to Shoreham on July 25 misses the mark.

Intervenors' Brief at 49. The issue is how that order should be interpreted, not its applicability to Shoreham. As the Licensing Board recognized, this is not merely a rehash of the arguments prior to CLl-84-8:

LILCO did not assert that GDC 17 is inapplicable to Phases I and ll; what LILCO said was that the requirements of GDC 17 (power capacity and capability sufficient to assure performance of safety functions specified by the criterion), when applied, are satisfied, even with no power source available during Phases I and 11. This is not an attempt to

" harmonize" GDC 17 and 10 CFR S 50.57(c), contrary to the Commission's May 16 decision. Rather, we simply took the original requirements of GDC 17 as set forth in the regulation and applied a rule of reason in its interpretation as a matter of " simple logic and common sense." (Order at p.10).

Initial Decision at 16-17.62/

b. The Phase I and II License Was Consistent with NRC Precedent Precedents concerning other plants that had been licensed under similar circumstances were properly instructive to the Licensing Board. Duke Power Cornpany was authorized to load fuel and conduct precriticality testing at its Catawba facility notwithstanding unresolved questions concerning the 62/ This conclusion is consirtent with the views of the General Counsel Etlined in SECY-84-290A (July 24,1984). OGC noted that "some regulations can be considered inapplicable as a matter of simple logic." Id. at 19.

(

TDI diesel generators.63_/ Similarly, Mississippi Power r, Light's Grand Gulf plant was permitted to continue low power testing following the discovery of problems with TDI diesel generators. it was not until Grand Gulf was being considered for full power operation that any exemption from the NRC's regulations was issued. See 49 Fed. Reg. 35,448 (1984) .M/

Finally, authorization of Phases I and ll of low power testing for Shoreham is consistent with the Commission's decision in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-83-27, 18 NRC 1146 (1983). Although reliability of onsite power sources was not at issue in Diablo Canyon, there were outstanding questions concerning quality assurance at Diablo Canyon when the Commission permitted fuel load and precriticality testing. That Diablo Canyon was an enforcement action, rather than an initial licensing, had no conceivable impact on the substantive conclusion that the activities to be conducted present no risk to the public and, therefore, could proceed without resolving potentially significant safety issues.

63/ NRC Staff Response to LILCO's Motion for Directed Certification . . .

at 5 n.4 (August 17, 1984). See NUREG-0954 (Catawba Safety Evaluation Report), Supplement No. 3, at 8-1 to 8-3. Presumably as a result of the confusion concerning the meaning of the Commission's May 16 Order, the Staff perfunctorily considered exigent circumstances in the Catawba SSER in order to grant a " partial exemption." The same consideratior would have supported the grant of the same " partial exemption" to LILCO if any exemption were necessa y.

M/ The Intervenors erroneously contend that these other facilities are not similarly situated because of differences between the diesel generators at Shoreham and Grand Gulf. Intervenors' Brief at 50 n.39. Such differences are immaterial to this issue, however. It is important only that the plants had outstanding questions concerning compliance with GDC 17 and yet were permitted to conduct low power testing.

1 I

c. A Phase I and 11 License is Authorized Given the treatment of Catawba and Diablo Canyon, the Intervenors' repeated assertion that the NRC has no legal authority to issue a license for Phases I and 11 defies both factual and legal precedent. See also Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2),

LBP-77-64, 6 NRC 808, 814 (1977) . Importantly, the grant of a Phase i and Phase 11 license is also consistent with 10 CFR S 50.57(c), which authorizes

" low power testing (operation at not more than 1 percent of full power for the purpose of testing the facility), and further operation short of full power operation" (emphasis added).65/

The Intervenors try, but fail, to distinguish Diablo Canyon, North Anna and Catawba; they make no attempt to explain the regulation's language. They attempt to distinguish Catawba because of differences in the specific problems encountered with the TDI diesel generators. Obviously, this is not a material distinction. The Intervenors attempt to distinguish Diablo Canyon because it was an enforcement proceeding. Yet, if fuel loading and precriticality testing were not a distinct and licensable phase of 65/ Given the patent frivolity of the intervenors' argument, in view of NRC precedent and regulations, there was no need for the Board to address it expressly. Even if the Appeal Board finds that the Licensing Board should have engaged such a frivolous issue, it is well established that the Appeal Board can make the requisite findings itself. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 42 (1977).

i i

operation, surely the Commission would not have reinstated Diablo Canyon's license for that limited purpose. Finally, Intervenors attempt to distinguish North Anna and Catawba because they were uncontested. If, however, the Commission had no legal authority to issue such licenses, it presumably would not have done so, whether or not they were contested.

F. The Phase I and 11 License Complies with Section 50.57 -

The Intervenors' last argument is that a Phase I and 11 license could not have been authorized pursuant to summary disposition because there was no formal finding relating to satisfaction of GDCs 1-4, 18, 33-35, 37, 38, 40, 41, 43, 44, 46, and Appendix B. Each of the cited regulations are allegedly unsatisfied only because of the absence of qualified diesel generators . Yet, since no exemption from GDC 17 was required, no exemption from these other regulations would be required.

GDC 17 does not discuss " qualified" onsite power sources. It only requires an onsite power source sufficient to meet the functions described. GDCs 1-4 place requirements on the onsite power source which, if met, make it " qualified." Necessarily, a decision that no onsite diesel generator is needed (though an onsite diesel generator set exists) incorporates the conclusion that it need not be " qualified" in accordance with these other general design criteria.

Similarly, GDC 18 requires, in pertinent part, testability of the I

onsite source. Obviously, if the onsite source is not needed, this portion of GDC 18 has no safety impact. And the other cited GDCs are allegedly unsatisfied only to the extent they require that the applicable systems have sufficient redundancy to assure their function if offsite power is unavailable or that the transfer between normal and emergency power sources be testable. Again, since LILCO needs no AC power for Phases I and II, the necessity for those other systems to operate or be testable is immaterial. In short, the Intervenors try to construct absurd requirements where none exist. Their argument is pure sophistry.

This san e non sequitur destroys the remainder of the Intervenors' argument on this point. They acknowledge that "it may generally be true that in the normal case, where a low power license applic.ation is based on the same plant configuration as the full power license application . . . prior partial initial decisions may limit or cover the matters in controversy for purposes of Section 50.57(c)." Intervenors' Brief at 60.

They contend, however, that this is not the normal case. Here, LILCO has itself placed into controversy an entirely new proposal for the provision of onsite AC power in connection with its most recent version of its low power license motion and exemption request.

Id. Yet, again, the intervenors overlook that the Phase I and 11 license was not based upon the granting of an exemption. The Phase I and 11 license is not dependent in any way on the existence of the alternate power h i

l

\

configuration and there are no new facts which put into dispute any of the I

rulings made by the Brenner Board in the Partial Initial Decision. Thus, there was no need to make a separate finding that construction of the plant was substantially complete or to make a separate security finding in view of the Brenner Board's previous Partial Initial Decision.66/

66/ Even if the Phase I and 11 license is now considered as part of the exemption granted by the Initial Decision, there would be no need to make additional findings. The Intervenors' arguments are premised solely upon the granting of summary disposition without the necessary exemption findings in the September 5 order.

IV. CONCLUSION For the reasons discussed above, the Licensing Board committed no reversible error. It conducted its proceedings carefully and thoroughly.

It afforded every party the opportunity to be heard. At the same time, it refused to allow the proceeding to expand at the Intervenors' whim beyond the relevant issues or to allow the proceeding to be turned into a debate on whether Shoreham should ever operate. Because there is no reversible error, the initial Decision of the Licensing Board, and insofar as necessary, the September 5 order, should be affirmed.

Respectfully submitted, LONG ISLAN.D LIGHTING COMPANY W.Maylor flyh/elevN // .

Donald P. utwin V Robert M. Rolfe Anthony F. Earley, Jr.

Hunton r, Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: January 14, 1985

LILCO, January 14, 1985 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-4 (Low Power)

I hereby certify that copies of LILCO's Reply Brief were served this date upon the following by U.S. mail, first-class, postage prepaid.

Alan S. Rosenthal, Chairman Judge Elizabeth B. Johnson Atomic Safety and Licensing Oak Ridge National Laboratory Appeal Board P.O. Box X, Building 3500 U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Judge Howard A. Wilber U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Regulatory Judge Gary J. Edles Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Fabian G. Palomino, Esq.

Commission Special Counsel to the Washington, D.C. 20555 Governor Executive Chamber, Room 229 Judge Marshall E. Miller State Capitol Atomic Safety and Licensing Albany, New York 12224 Board U.S. Nuclear Regulatory Herbert H. Brown, Esq.

Commission Alan R. Dynner, Esq.

Washington, D.C. 20555 Karla J. Letsche, Esq.

Kirkpatrick & Lockhart Judge Glenn O. Bright 1900 M Street, N.W., 8th Floor Atomic Safety and Licensing Washington, D.C. 20036 Board U.S. Nuclear Regulatory Mr. Martin Suubert Commission c/o Congressman William Carney Washington, D.C. 20555 113 Longworth House Office Building Washington, D.C. 20515

l James Dougherty, Esq. Stephen B. Latham, Esq.

3045 Porter Street, N.W. John F. Shea, Esq.

Washington, D.C. 20008 Twomey, Latham & Shea 33 West Second Street Jay Dunkleberger, Esq. P. O. Box 398 New York State Energy Office Riverhead, New York 11901 Agency Building 2 Empire State Plaza Martin Bradley Ashare, Esq.

Albany, New York, 12223 Suffolk County Attorney H. Lee Dennison Building Edwin J. Reis, Esq. Veterans Memorial Highway Robert Perlis, Esq. Hauppauge, New York 11788 Office of the Executive Legal Director Docketing and Service Branch U.S. Nuclear Regulatory Office of the Secretary Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555

.Maylor evelW,~ III -

Donald P. rwin Robert M. Rolfe Anthony F. Earley, Jr.

Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED: January 14, 1985

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