ML20134H326

Response Opposing Suffolk County & State of Ny 850717 Brief in Support of Appeal of ASLB 850614 Decision on Tdi Emergency Diesel Generators.Certificate of Svc Encl

ML20134H326
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/26/1985
From:	Goddard R, Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-354 OL, NUDOCS 8508280368
Download: ML20134H326 (23)

Text

_ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD DS,LFEfED l

'85 NJG 27 P3:36 In the Matter of LONG ISLAND LIGHTING COMPANY

)

Docket No. 50-322-1

)

(0L) 0FFICE OF SECRw.,u 00CKET ! & ERvn;E (Shoreham Nuclear Power Station,

)

Unit 1)

)

NRC STAFF RESPONSE TO SbFFOLK COUNTY AND STATE OF NEW YORK BRIEF IN SUPPORT 0F APPEAL 0F JUNE 14,1985 ASLB DECISION

+

ON EMERGENCY DIESEL GENERATORS Richard J. Goddard Counsel for NRC Staff 4

Edwin J. Reis Assistant Chief Hearing Counsel August 26,-1985 8508280368 e50826 L

DR ADOCK 050 2

3307

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCMETED BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

"'Nor In_the Matter of 185 AUG 27 P3:36 LONG ISLAND LIGHTING COMPANY

)

Docket No. 50-322-1 CFaLEOF EcaELm -

)

(OL) 00CnETiNG & SERvicf.

)-

(Shoreham Nuclear Power Station, BRANCH Unit 1)

NRC STAFF RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK BRIEF IN SUPPORT OF APPEAL 0F JUNE 14,1985 ASLB DECISION ON EMERGENCY DIESEL GENERATORS Richard J. Goddard Counsel for NRC Staff f

Edwin J. Reis Assistant Chief Hearing Counsel August 26, 1985 w.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

LONG ISLAND LIGHTING COMPANY

)

Docket No. 50-322-1

)

(0L)

(Shoreham Nuclear Power Station,

)

Unit 1)

)

NRC STAFF RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK BRIEF IN SUPPORT OF APPEAL 0F JUNE 14, 1985 ASLB DECISION ON EMERGENCY DIESEL GENERATORS I.

INTRODUCTION On June 14, 1985, the Atomic Safety and' Licensing Board presiding over the Shoreham operating license proceeding issued a partial initial decision ("PID") on emergency diesel generators (LBP-85-18, 21 NRC

)

authorizing the NRC Staff to issue a low power (up to 5% of rated power) operating license, providing the Staff has made findings supporting such a license on all issues not in controversy. PID at 4.

The Licensing Board held that the three Transamerica Delaval Inc. emergency diesel generators (EDGs) that Applicant proposes to use to supply backup emer-gency electrical power, which is required to effect a safe shutdown of l'

the Shoreham Nuclear Station in the event of a loss of off-site elec-trical power, satisfied the requirements of General Design Criterion 17, 10 C.F.R. Part 50, Appendix A ("GDC 17"). On July 17, 1985, Suffolk

(

County and the State of New York (hereinafter "Intervenors") filed a l

brief appealing from the Licensing Board's June 14, 1985 Decision

, authorizing the issuance of the low power license. They argue that the Licensing Board decision should be reversed on the sole ground that the Licensing Board erroneously excluded evidence purportedly showing that GDC 17 had heretofore been " interpreted and applied to require that...

the maximum load at which EDGs are permitted to operate (' maximum permitted load') must be substantially higher than the EDGs' maximum emergency service loads ('MESL')." 1/ Brief at 1-2.

The Staff herein responds to the issues raised in the Intervenors' appeal and, for the reasons given below, submits that the Licensing Board's Decision should be affirmed.

II. STATEMENT OF THE CASE On June 14, 1905, the Licensing Board pfesiding over the operating license proceeding issued a partial initial decision on emergency diesel generators, which resolved all issues in controversy necessary for the l

issuance of a low power operating license. LBP-85-18, 21 NRC (1985). 2_/

1/

The MESL is the maximum electrical load existing on any EDG during Shoreham is a loss of off-site electrical power (gn basis event for the occurrence of a design bcsis event. The desi LOOP) coincident with a loss of coolant accident (LOCA). PID at 90 (L-4).

~2/

This decision also authorizes the issuance of a full power operatirig license for the first fuel cycle, insofar as the diesel issues before the Licensing Board were concerned.

It shculd be noted, how-ever, that offsite emergency planning issues still pending presently preclude the issuance of a license above 5% of rated power. PID at 4.

The emergency diesel generator issues in contention in this proceeding derive from a County motion dated May 2, 1983, wherein the County moved to admit a new contention which alleged, inter alia, that the Shoreham emergency diesel generators failed to comply with the requirements of GDC 17 because of known cracking of cylinder heads and excessive vibration. Applying the standards both for admitting a late filed contention and for reopening the record to the County's proposed contention, the Board granted the County's motion in part, 3/ and scheduled evidentiary hearings on the EDG Contention cs admitted. Prior to the beginning of those hearirgs, in August 1983 the crankshaft of one of the three Shoreham EDGs broke during preoperational testing. Upon disassembly and examination of the other two EDGs, cracks were also discovered in the crankshafts of those units.' The failure of the crankshafts caused a postponement of the hearing, and Applicant and the NRC Staff began the conduct of lengthy technical reviews of the Shoreham EDGs, as well as other engines manufactured by Transamerica Delaval, Inc.

Other defects in the components of the engine, including the cylinder blocks, were discovered during these reviews. PID at 1, 2.

After the discovery of these additional defects in the EDGs, the County moved to admit a supplemental EDG contention on January 27, 1984.

The Licensing Board, by oral rulings on February 27, 1984 and July 5, 1984, which were confirmed by written order of the Board dated July 17, 1984, granted the County's motion in part, admitting a supplemental EDG 3/

Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132 (1983).

1 centention. That contention, as admitted, alleged that, contrary to the requirements of GDC 17, I the EDGs would not operate reliably or adequately perform their required functions, because the EDGs were overrated and undersized, and that certain EDG components, including crankshafts and cylinder blocks, were inadequately designed or were not satisfactorily manufactured.

Evidentiary hearings on this supplemental EDG contention began on September 10, 1984. Before the close of the record of that proceeding, on November 6,1984, Applicant moved to reopen its case and supplement the record.

In connection with this motion, LILC0 sought to amend the FSAR by reducing the maximum permitted load ratings for the EDGs from their original continuous duty rating of 3500 KW, with a short time

-4/

GDC 17 requires in pertinent part that, during an assumed loss of off-site electrical power, the on-site electric power system, i.e.

the EDGs, must have sufficient capacity and capability to permit functioning of structures, systems and components important to safety.

It states, in part:

Criterion 17 - Electric power systems. A0 on61te electric pcwer system and an offsite electric power 6y M h shall be provided to per it functioning of structures, sy!/^ms, and components important to safety. The safety furgtfv for eachsystem(assemingtheothersystemif,notfurstionth'd shall be to provide sufficient casacity and (#h bolity to assurethat(1)specifiedaccepta>1efueldesf00" hnlis and design conditions of the reactor coolant pressyfs boundary are not exceeded 89(a result of entfcipated$)thecarejirooledan q rationa occurrencM and i bu t 9 he n}t D.

llt

[ y WIa(bl fui4 ton

• m Pib f lt d i, \\d mt.

nglNt alhrul in IF I ri

-~

evoirsion rating of 3900 KW E/,toa"qualifiedload"5/of3300KW. The Licensing Board, in an unreported order dated December 4, 1984, granted Applicant's motion and offered the parties to the proceeding the oppor-tunity to file contentions challenging the lower " qualified load" rating proposed by Applicant.

On December 17, 1984 the County and State jointly moved to admit an additional contention. This contention, as modified and admitted by the Licensing Board in an unreported order dated January 18, 1985, specifically alleged that the EDGs with a maximum " qualified load" of 3300 KW as the maximum permitted load did not provide sufficient capacity and capability to assure various safety functions because the qualified load did not encompass all of the loads that could be imposed on the EDGs, including loads that may be imposed due' to operator error. E

-5/

A " continuous rating" is generally the electric power output capa-bility that the diesel-generator unit can maintain in the service environment for 8760 hours0.101 days <br />2.433 hours <br />0.0145 weeks <br />0.00333 months <br /> of operation per year. A "short-time rating" is generally the electric power output capability that the diesel-generator unit can maintain in the service environment for 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> in any 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> pericd. See IEEE Standard 387-1977.

This standard is referred to in Regulatory Guide 1.9, Rev. 2, December 1979, at 1 68.

~6/

The qualified load is defined as inat load which bounds the maximum emergency service load (MESL) for the EDG and at which certain key components have operated successfully for at lesst 10,000,000 loading cycles, or approximately 740 hours0.00856 days <br />0.206 hours <br />0.00122 weeks <br />2.8157e-4 months <br />. The MESL Sr each of the Shoreham EDGs, see note I supra, is 3253.3 KW or less, and is determined by summing the loads imposed by a 1 ecuipment whi 9 will be connected for more than brief periods of time following

'e initiation of a LOOP /LOCA event. The concept rf a "nlalified i;ad" was *ntroduced by the NRC Staff as an interim lic ensing basis for TDI emergency diest '

generators, at Shoreham and e'

• ere.

PID at e'-92 (L-3 to L-8).

7/

Joint Motion of Suffolk Count.,

d New York Stat to Admit EDG Loac f

Contention, December 17, 1985, itachment 1, at..

L

~

As part of the submitted contentions, the Intervenors proposed that the contenticas state in part:

(b) There is little or no margin between 3300kW and the maximum emergency service loads for the EDGs, in sharp contrast to emergency diesel generators at other nuclear plants where a substantial margin provides adequate assurance of requisite reliability under GDC 17.

In denying the admission of this part of the contention ircofar as it

/

would bring into litigation conditions at other nuclear plants, the Licensing Board stated:

... In addition, to the err admission c" this part would arguably include consideratir,

+he margin et other nuclear plants, such litigation wr ~ c

" elevart c-at least so remotel collateral t: the nate rii esbe{

as to be digressi#e without any redeeming un

ness. -

l On January 25, 1985, the Intersenors filed tw subject testimony, i

and by motien of February 8,1982, LILCO move'd to strih wse portions of the sute ct testime TiTg with desis

-s at oh -

ear plants. E In strikita t se portions of u ; ;rvenors ' :rc %

te-stimony, the ticensing Erard ruled:

i

. These

<tions of

• testimt id lead to

~ation of the margin 4 4

-her nuci,

.iants. As set our January 18,198S L v ruling the admissibility

~ the 1:3 load contention, at i

'],such itigation culd at least so remotely ct wral to t4 material

,e issues :. ' ore us as to se digress without any redeeming fodend:

usefulnes That reastming a s D ectly to and,h ar i:: buttre; ed by these p rtions testimony whit e

striking.

We are not striking othe< aortions of the to% tj's testirony which LILCO's cotion place in thh same category,

-B/

Memorandur d Order Ruling on Admis* f bility ' ' Emergency Diesel Gener9 tor bad Contention, January 15, 1985,

8.

LILC: 's Motion to Strike Testimony c" Dale = Bridenbaugh and Greg; y C. Minor Regarding Suffch Countf s Emergency Diesel Load Contu tion, February 1,1985, at

-4.

C

=

_- and in the apparently related category denominated by LILCO's motion as " Overload Rating."

It is relevant to the admitted portions of the contention, particularly (a)(1), and not digressively collateral, for the County to proffer testimony that the general industry practice is to bound intermittent and cyclic loads by a short-term overload rating for the EDG's.

Unless another party disputes this, there should be no need to embark on the collateral gphofexaminingdetailsofoperation at other nuclear plants.

The reopened hearings began on February 12, 1985, and concluded with the closing of the record on March 12, 1985. As indicated in the Order of February 11, 1985, the Board received and considered testimony on general industry practice in regard to the consideration of intermittent and cyclic loads in setting short-term overload ratings for emergency diesel generators. See PID at 17-21 (B-12 to B-16).

On Jur,e 14, 1985, the Licensing Board issued its Partial Initial Decision which is the subject of this appeal,' holding that the EDGs met the requirements of GDC 17, and authorizing the NRC Staff to issue a low power cperating license for the Shoreh8m Station.

III. ARGUMENT The Licensing Board did not err when it excluded evidence regarding overload ratings at other nuclear plants on the grounds that the proffered evidence was irrelevant and so remotely collateral to the

_ issues in controversy as to be without merit.

This appeal is predicated solely on the exclusion of evidence which Intervenors maintain would show that GDC 17, governing the provision of emergency electrical power, has heretofore been interpreted and applied

~~10/ Memorandum and Order Ruling on Motions to Strike Portions of Suffolk County and LILC0 Testimony, February 11, 1985, at 3.

) i by the fiRC to require that the maximum loads at which emergency diesel generators are permitted to operate be substantially higher than the maximum loads the diesels would experience in an emergency. Brief, at 1-2.

The Licensing Board excluded this evidence on the ground that it would be " remotely collateral to the material issues... as to be digressive without any redeeming usefulness." E l Thus while the Board allowed the introduction and consideration of evidence regarding general industry practice on short term overload ratings for the EDGs which would bound intermittent and cyclic loads, it refused to embark on the collat-eral path of examining details of operation at other nuclear power plants. EI On this appeal, Intervenors allege that the erroneous exclusion of this evidence deprived Intervenors of the opportunity to demonstrate that the EDGs fail to comply with GDC 17. The Staff s'ubmits that no error was committed by the Licensing Board in excluding the subject evidence, as:

a) The proffered evidence did not demonstrate past agency practice to require that the maximum permitted loads for emergency diesel generators be substantially higher than peak emergency service loads.

b) The proffered evidence was not material to the manner in which the Applicant sought to comply with GDC 17.

c) The submitted evidence was collateral to the issues and digressive.

l d) The exclusion of the evidence did not prejudice Intervenors.

1 11/ Id.

12/ Id.

A.

The excluded evidence is irrelevant to a determination of whether the Shoreham EDGs comply with GDC 17 capacity and capability requirements.

The thrust of Intervenors' appeal is that it was error to exclude evidence showing past Commission interpretation of GDC 17 to require that the maximum permitted load of emergency diesel generators be substan-tially higher than the maximum loads they would see in an emergency.

Intervenors' Brief at 6.

However, this was not in fact what the evidence showed.

It only identified margins between peak emergency service loads and the capacity of the emergency diesel generators at selected BWR plants.

It showed a wide range of apparent differences in such " margins" without any apparent standard or criterion for the amount by which the capacity exceeds load. Such evidence does not show a consistent staff or industry interpretation of GDC 17 to require a given minimum margin between peak emergency service loads and the capabilities of emergency diesel generators. The proffered evidence only showed that plants having the margins shown were licensed, and not that others without such margins would not be licensed.

In short, the excluded evidence did not show any NRC practice or an interpretation probative of the meaning of GDC 17 to require a particular margin in quantitative terms.

General design criteria (GDC) set out minimum requirements for the principal design criteria of water cooled nuclear power plants.

Acceptable methods for implementing these general design criteria are provided to license applicants through regulatory guides, standard format and content guides for safety analysis reports, standard review plan provisions and branch technical positions. However, applicants are free to select any other method of their choice to achieve the goal of compliance. El GDC 17 requires, in part, that the on-site emergency electrical power system for a nuclear power plant have " sufficient capacity and capability to assure that (1) specified acceptable fuel design limits and

~

design conditions of the reactor pressure boundary are not exceeded as a result of anticipated operational occurrences and (2) the core is cooled and containment integrity and other vital functions are maintained in the event of postulated accidents." An applicant is free to demonstrate, by use of regulatory guides or independently derived methods, that the emergency diesel generators are capable of meeting the loads required to

-perform these tasks.

The Licensing Board indeed recognized th'at the past standard practice in the nuclear industry for determining whether EDGs comply with GDC 17 was to refer to the continuous and short time ratings in accordance with the procedures set forth in Regulatory Guide 1.9.

PID at17-20(B-12toB-15).

However, the Board correctly indicated that emergency diesel generator capacity may be evaluated by means other than those set out in Regulatory Guide 1.9.

I_d.

In this case, the Applicant demonstrated by other means that the maximum emergency service loads would not exceed the maximum load ratings (qualified leads) of the EDGs.

PID at 101-02 (L-30); Tr. 27,967-89 (Berlinger).

-13/ Petition For Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978), citing Nader v. NRC, 513 F.2d 1045, 1052 (D.C.

Cir. 1975).

Intervenors further argue that as the regulatory standards are not totally free from ambiguity, the past practice of the NRC staff and the nuclear industry in interpreting and applying GDC 17 is not only relevant and material, but is the best evidence of what GDC 17 really means. E The general principle embodied here derives from the canon of construc-tion that the reasonable interpretation of a regulation by officials who drafted it and are charged with its administration is entitled to deference. EI The Intervenors cite three NRC cases where deference was accorded to the Commission's interpretation of its regulations. EI However, these cases are not germane. There has been no previous interpretation of GDC 17 to require particular quantified margins, and as pointed above, the evidence proffered did not establish any consistent staff or industry practice establishing a minimum margin. El M/ Intervenors' Brief at 10 and fn.11.

-15/ Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 190-91 (1978), and cases cited therein,

-16/ Northern Indiana Public Service Comission v. Porter County Chapter of the Izaak Walton League of America, Inc., 423 U.S. 12, 14 (1975);

Power Reactor Development Company v. International Union of Electrical, Radio, and Machine Workers, 367 U.S. 396, 408 (1961);

fiusth Anna Environmental Coalition v. NRC, 533 F.2d 655, 665 (D.C.

Cir. 1976).

In U.S. v. Clark, 454 U.S. 555, 565 (1982), the Court similarly accorded deference to an agency interpretation of its regulation and the enabling statute.

E/ In the instant case, the Staff, in testimony and proposed findings, trade clear its position interpreting GDC 17 as requiring no margin beyond the design load, and that Staff interpretation is now being challenged by the Intervenors. Tr. 28,011 (Berlinger); Tr. 27,743 (Knox, Berlinger); Tr. 27,745, 752 (Knox); NRC Staff's Proposed Findings of Fact and Conclusions of Law L-2, L-7, L-8.

i i Intervenors also argue that GDC 17 does not provide a quantifiable standard for diesel generator capacity and capability, EI but Intervenors fail to show any manner in which the standards in GDC 17 would be clari-tied or explained by admission of the excluded testimony. EI The loads to be accommodated by the emergency diesel generators are prescribed in GDC 17 in terms of the safety function requirements which are placed on the on-site power system. A definite criteria for determining the equip-ment which must operate following any event is prescribed and the resulting maximum electric power demand which each diesel generator must supply is identified. PID at 101 (L-30). This site-specific load requirement establishes the capacity and capability requirements for emergency diesel generators. Applicant computed this required electrical load for Shoreham and demonstrated that it was bounded by the " qualified load of 3300 KW."

Decision at 89-103 (L-2 to L-32), 113-14 (L-48). The record below demonstrates that GDC-17 has not been construed as requiring a substantial margin, or a margin to accommodate operator error, E l between M/ County Brief at 6,10.

19f In the North Anna case cited by the County supra note 15, at 667, the Court acknowledged the necessity for flexibility in the Commission's regulations, rejecting intervenor's attempt to "impos[e] inflexible standards on a flexible regulation."

-20/ The Licensing Board found that the design load, as defined in IEEE Standard 387-1977, and the qualified load, need not consider loads erroneously placed on the engines by operator error, as no single operator error could result in exceedance of the qualified load on more than one diesel and violation of the single failure criterion of GDC 17. PID at 102-04, 113-14 (L-30 to L-33, L-48). Only 2 of the 3 EDGs are required for safe plant shutdown.

PID at 103 (L-32).

a diesel generator's rating or qualified load and the maximum emergency service load. S/

In summary, the proffered evidence does not show that the application of GDC 17 was interpreted in the past to require particular margins. The proffered evidence was correctly excluded as collateral to the issues in controversy. SI B.

The Licensing Board Correctly Concluded that the Qualified Load Presents an Adequate Interim Licensing Basis for the Shoreham Emergency Diesel Generators.

Intervenors allege in their appeal that the Licensing Board has applied a lower and erroneous standard of compliance with GDC 17 to the

" troubled Shoreham EDGs than has been applied to reliable EDGs." Inter-venors Brief, at 11. Attributing to the Boar'd a view of the Shoreham EDGs as " suspect", the Intervenors allege that the Board nonetheless permitted operation of the engines with a margin between the NESL and their maximum permitted load, a "far less stringent standard than has been applied to all other BWR EDGs which have not had problems and which

.are not suspect."

Intervenors' Brief at 11,12.

Intervenors thus again

-21/ Ir.dccd, as '..' the inclusion of operator error loads in the qualified load and the requirement for a capacity of the diesel generators encompassing this limit, Staff witnesses have testified that there may be, and probably are, operating plants where addition of the operator error loads would result in exceeding the ratings of the emergency diesel generators. Tr. 28,200 (Hodges, Knox).

-22/ Cf. Duke Power Company (William B. McGuire Nuclear Power Station.

Units 1 and 2), ALAB-669, 15 NRC 453, 473 (1982); Duke Power Company (Catawba Nuclear Station, Units 1 and 2); ALAB-397, 4 NRC 397, 416 (1976).

raise the question of a quantitative margin requirement for the EDGs as being required by the provisions of GDC 17.

The decision of the Board recognized that the Staff had introduced the concept of a qualified load as an interim licensing basis for the TDI diesel engines.

PID at 18 (B-13), 89 (L-3). That qualified load is defined as the load which bounds the maximum emergency service load for the diesel generator and at which certain key components of the engine have been successfully operated for at least 10,000,000 loading cycles.

This qualified load was established at 3300 KW for Shoreham. M. The Board acknowledged that no engines other than engines manufactured by TDI have been tested and approved using this approach, although the Staff has used the same approach in reaching licensing decisions on other nuclear plants using different models of TDI engines. 23/

It appears that the source of Intervenors' dissatisfaction is the deviation by the Applicant from the standard regulatory guide analysis of EDG capacity set forth in Regulatory Guide 1.9.

That regulatory guide, incorporating section 3.7 of the IEEE Standard 387-1977, sets forth

" principal design criteria and qualification testing requirements that, if followed, will ensure that selected diesel generator units meet their performance and reliability requirements." E/ However, as the document

(

itself indicates, a Regulatory Guide provides optional regulatory guidance; I

l 23/ Decision at 89, fn.14.

L i

E4/ Regulatory Guide 1.9, Revision 2, December 1979 at 1, Section B.

See footnote 5, supra.

i l

L

- - -. and although it sets out a manner of meeting regulr.cory requirements, it need not be followed. E Regulatory Guide 1.:# explicitly states:

Regulatory Guides are issued to describe and make avail-able.to the public methods acceptable to the NRC staff of implementing specific parts of the Commission's regu-lations, to delineate techniques used by the staff in evaluating specific problems or postulated accidents, or to provide guidance to applicants. Regulatory Guides are not substitutes for regulations, and compliance with them is not required. Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission.

Here it has been demonstrated by credible evidence that the loads to which the diesels have been qualified by tests will not be exceeded by the maximum emergency service loads which the diesels will see in opera-tion. This evidence demonstrates that the requirements of GDC.17 are met, and a proper basis exists for licensing the subject plant. PID at 88-92 (L-1 to L-8), 113-14 (L-48). Evidence relating to whether the engines conform to the guidance in Regulatory Guide 1.9 was immaterial.

C.

The Licensing Board Correctly Excluded the Proffered Evidence as Excessively Collateral.

Substantial discretion is vested in Atomic Safety and Licensing l

Boards to use their authority in order to assure that hearings remain focused sharply on matters in controversy. This authority includes a

-25/ Petition for Emergency and Remedial Action, su ra note 11, at 406-07; see also Long Island Lighting Company oreham Nuclear PowerStation, Unit 1),ALAB-788,20NRC1102,1161(1984); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 937 (1981); Gulf States Utilities Company ((River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 773-75 1977).

m: bread discretion to exclude proffered evidence on issues which would be excessively collateral to those set forth in admitted contentions, in order to avoid time-consuming and digressive litigation. 2_6/ A review of the subject evidence offered by intervenors leads to the conclusion that its admission in evidence, and the resultant examination and cross-e' anination of witnesses with regard to the numerous facilities identi-fled in this exhibit, would have resulted in very time-consuming and collateral litigation concerning the accuracy, meanings and reliability of data not relevant to the facility at issue in this proceeding. E The Staff notes again that the " qualified load" concept which has been adopted for the evaluation of TDI diesel generators, including the specific emergency diesel generators which are at issue in this proceeding, differs significantly in approach from the Regulatory Guide 1.9 methodology for evaluating the capability and capacity of EDGs.

Accordingly, an excursion to consider margins at other BWR facilities whose characteristics of design and operation are not identified would have inordinately delayed completion of an already long and prolix proceeding.

It would not have provided evidence on the basic question at issue in Shoreham -- i.e. whether the onsite power supply at Shoreham (the Emergency Diesel Generators) under the conditions explicitly assessed for Shoreham in fact satisfy the requirement of GDC 17. The

-26/ See 10 CFR Part 2, Appendix A at V; Consumers Power Company (Midland PTant, Units 1 and 2), ALAB-458, 7 NRC 155, 176 (1978).

27/ Applicant's Brief at pp. 9 - 14 extensively discusses the substantive content and apparent flaws appearing in the excluded Exhibit.

t

i hearing on diesel issues in this proceeding took 42 days, involved the testimony of 32 witnesses, and the generation of 8,127 pages of transcript along with 189 admitted exhibits.

In light of the extensive testimony provided by Applicant and Staff witnesses on the applicability and acceptability of the qualified load methodology, the Licensing Board properly exercised its responsibility to fac'ilitate a relevant and orderly hearing on material issues by excluding the proffered evidence.

D.

Assuming arguendo that the Licensing Board erred in excluding the proffered evidence, such error was non-prejudicial, as admission of the proffered evidence would not have affected the outcome of the proceeding.

The NRC Staff has taken the position that the exclusion of the proffered evidence was not erroneous. However, assuming arguendo that the Licensing Board did in fact err in this evidentiary ruling, Inter-venors must nevertheless establish that such error was prejudicial in that it would have affected the outcome of the proceeding. An erroneous evidentiary ruling by the Licensing Board, standing alone, would not occasion any appellate relief. El The Appeal Board has ruled that only serious errors affecting substantial rights, and which might have influenced improperly the outcome of the hearing, merit the taking of 28_/ Acknowledging that a Licensing Board ruling limiting cross-examination within the scope of an admitted contention "may well

[have been] erroneous," the Commission has held that such an error afforded no grounds for relief, absent a persuasive showing (of substantial prejudice. Southern California Edison Company San Onofre Nuclear Generating Station, Units 2 and 3), CLI-82-11, 15 NRC 1383,1384-85(1982), affirming ALAB-673, 15 NRC 688, 697 and n.14 (1982).

See also Louisiana Power and Light Company (Waterford Steam Electric 5tation, Unit 3), ALAB-732, 17 NRC 1076, 1096 (1983).

4

~.- m

,,-e

I exceptions and briefing on appeal. 29/ As the Appeal Board stated in denying a request for extension of time in which to brief numerous exceptions, "some procedural and evidentiary errors will almost invariably occur in lengthy hearings where a presiding officer must rule quickly and without the opportunity for collegial consultation that makc:

appellate tribunals appear omniscient." El The remedy sought in that use was : imply an additional 25 days of enlargement of briefing time, as opposed to the instant case where the Intervenors seek to reverse the

~

findings of the Licensing Board. Here, the intervenors have not offered any demonstration that the alleged error could substantially affect the outcome of the proceeding.

The qualified load concept.was the subject of extensive testimony by Applicant and Staff. E l The Board found'it provided a proper method of showing compliance with GDC 17 and a proper basis for the interim acceptance of the diesels and licensing of the Shoreham facility. S/ The Intervenors fail to show that if proof were admitted of higher margins at other nuclear power stations which use Regulatory Guide 1.9 and IEEE standard 387-1977 methodology to demonstrate compliance with GDC 17 at such other plants, it would undercut reliance on the qualified load

-29/ Northern Indiana Public Service Compa y (Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC 835, 836 1974).

M / Ibid.

-31/ See, e.., Dawe, et al. ff. Tr. 27,153 at 9-11; Tr. 27,759-60, 77 77 -

, 27,945-46, 27,960-66, 27,983-84, 27,990, 28,181-82 (Berlinger).

E/ PID at 113-14 (L-48).

methodology as an acceptable basis of finding that the diesels at Shoreham meet the requirements of GDC 17. El Accordingly, the intervenors have failed to show that, even if the proffered evidence were wrongfully excluded, any cause exists to reverse the Licensing Board. El IV. CONCLUSION For the reasons stated herein, the Staff submits that the appeal of Suffolk County and New York State should be denied.

Respectfully submitted, 4'

M RichardJ.dbddard Counsel for NRC Staff an.. f EdwinJ.Re@

Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this N#6 day o" August, 1985

--33/ The Appeal Board approved a similar approach taken by the Licensing Board earlier in this operating license proceeding, finding it

" inappropriate to compare [ seismic design] spectra produced by site-spccific methcdology" incorporating actual site characteristics with Regulatory Guide spectra " designed for applicability at essentially any location in the country and [are] unnecessarily conservative for Shoreham." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1169-70 (1984) (footnotes omitted).

UnTt 1)g Island Lighting Company (Shoreham Nuclear Power Station,

--34/

See Lon

, ALAB-788, 20 NRC 1102, 1151 (1984), quoting Lousiana Power and Light Company (Waterford Steam Electric Station, Unit 3),

ALAB-732, 17 NRC 1076, 1096 (1983).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCK TED BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

LONG ISLAND LIGHTING COMPANY

)

Docket No. 50-322-1 gglTbG SNVI

)

(OL)

BRANCH (Shoreham Nuclear Power Station,

)

Unit 1)

)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK BRIEF IN SUPPORT OF APPEAL 0F JUNE 14,1985 ASLB DECISION ON EMERGENCY DIESEL GENERATORS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 26th day of August,1985.

Alan S. Rosenthal, Esq., Chairman

• Gary J. Edles, Esq.*

Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555 Howard A. Wilber*

Docketing and Service Section*

Atomic Safety and Licensing Appeal Office of the Secretary Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555 Lawrence Brenner, Esq.*

Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Alumic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, D.C.

20555 Albany, NY 12224 Dr. George A. Ferguson Dr. Peter A. Morris Administrative Judge Administrative Judge School of Engineering Atomic Safety and Licensing Board Howard University U.S. Nuclear Regulatory Commission 2300 - 6th Street, N.W.

Washington, DC 20555 Washington, D.C.

20059 W. Taylor Reveley III, Esq.

Ms. Nora Bredes Hunton & Williams Shoreham Opponents Coalition 707 East Main Street 195 East Main Street P.O. Box 1535 Smithtown, NY 11787 Richmond, VA 23212 Jonathan D. Feinberg, Esq.

Herbert H. Brown, Esq.

New York State Department of Lawrence Coe Lanpher, Esq.

Public Service-Karla J. Letsche, Esq.

Three Empire State Plaza Kirkpatrick & Lockhart Albany, NY 12223 1900 M. Street, N.W.

8th Floor Stephen B. Latham, Esq.

Washington, DC 20036 John F. Shea, III, Esq.

Twomey, Latham & Shea James B. Dougherty, Esq.

Attorneys at Law 3045 Porter Street, NW P.O. Box 398 Washington, DC 20008 33 West Second Street Riverhead, NY 11901 Peter S. Everett, Esq.

Hunton & Williams Atomic Safety and Licensing 2000 Pennsylvania Avenue, NW Board Panel

• Washington, DC 20036 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Edwar,d M. Barrett, Esq.

Atomic Safety and Licensing General Counsel Appeal Board Panel

• Long Island Lighting Company U.S. Nuclear Regulatory Commission 250 Old County Road Washington, DC 20555 Mineola, NY 11501 Bruce L. Harshe Robert Abrams, Esq.

Consumers Power Company Attorney General of the State 1945 W. Parnall Road of New York Jackson, MI 49201 Attn:

Peter Bienstock, Esq.

Department of Law Gerald C. Crotty, Esq.

State of New York Sen Wiles, Esq.

Two World Trade Center Counsel to the Governor Room 46-14 Executive Chamber New York, NY 10047 State Capitcl Albany, NY 12224 MHB Technical Associates Mr. Jay Dunkleberger 1723 Hamilton Avenue New York State Energy Office Suite K Agency Building 2 San Jose, CA 95125 Empire State Plaza Albany, New York 12223 Hon. Peter Cohalan Leon Friedman, Esq.

Suffolk County Executive Costigan, Hyman & Hyman County Executive / Legislative Bldg.

120 Mineola Boulevard Veteran's Memorial Highway Mineola, NY 11501 Hauppauge, NY 11788 Martin Bradley Ashare, Esq.

Chris Nolin Suffolk County Attorney New York State Assembly H. Lee Dennison Building Energy Committee Veteran's Memorial Highway 626 Legislative Office Building Hauppauge, NY 11788 Albany, New York 12248

_p4 ^ = -,,. " f '

=)

Ric1ard J. Ao6dard Counsel fo W C Staff 4

k a

b I

e i

e

+

)

,, -,,,, -