ML20138R100
| ML20138R100 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/23/1985 |
| From: | Twana Ellis HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#485-605 OL, NUDOCS 8512300382 | |
| Download: ML20138R100 (13) | |
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UNITED STATES OF AMERICA pseg NUCLEAR REGULATORY COMMISSION L a,g7g Before the Commission l
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL l
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i (Shoreham Nuclear Power Station,
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j Unit 1)
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- 1 BRIEF IN OPPOSITION TO j
SUFFOLK COUNTY'S PETITION FOR REVIEW t.
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W. Taylor Reveley, 111 T. S. Ellis, Ill
<j Hunton & Williams
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P. O. Box 1535
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Richmond, Virginia 23212 l
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DATED:
December 23, 1985 8
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0512300302 051223 l
PDH ADOCK 05000322 G
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 03,.
D&S!O Before the Commission
'8S OEC25//// fg in the Matter o'
'c c LONG ISLAND 1.lGHTING COMPANY
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Docket No. 50-322-OL.
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(Shoreham Nuclear Power Station,
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Unit 1)
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BRIEF IN OPPOSITION TO l
SUFFOLK COUNTY'S PETITION FOR REVIEW l.
PRELIMINARY STATEMENT!
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SC's Potition for Review deserves summary rejection.
It misstates the proper scope of the appeal; it misrepresents both the record and the Appeal Board s decision; and it flatly fails to meet the Commission's stan-dard for discretionary review.
See 10 C.F.R. S 2.786(b).
As the Appeal Board's decit. ion correctly observes (and as SC's Appeal Brief also re-flects), the issue on appeal concerns the exclusion by the Board of certain evi-dence offered by (SC) that purportedly reflects the NRC Staff's interpretation of the requirements imposed by GDC 17.
ALAB-824 at 2-3; see also SC Appeal Brief at 1, 6, 8,14.
The excluded ev-idence consists of a table purporting to show EDG loading conditions at se-lected nuclear power plants in the United States and some brief associated prefiled testimony.
See SC Petition Attachments.
8 For brevity, petitioners Suffolk County and the State of New York are referred to jointly as "SC."
The Appeal Board's decision dated November 21, 1985 is cited as "ALAB 824," followed by the page number.
The Appeal Board Oral Argument of September 26, 1985 is cited as " Oral Argument," fol-lowed by the page number.
All emphasis has been added unless otherwise noted.
SC's appeal of this issue was thoroughly examined and resoundingly rejected by the Appeal Board.
The excluded evidence was neither relevant nor probative.
At best, it was excessively collateral.
In a futile effort to avoid the force of the Appeal Board's decision, SC's Petition now seeks to broaden the scope of the appeal and diffuse its focus, in an effort to reach the Commission's review criteria, SC now erroneously claims that there are two " fundamental and far-reaching" issues meriting Commission re-view:
(1) whether a party can be " absolutely barred" from discovering, eliciting and presenting testimony and evidence on interpretation and ap-plication of an NRC regulation and (2) whether EDGs without sufficient ca-J pacity and capability to perform their safety functions may nonetheless be approved because the single failure criterion postulates failure of only one " inadequate" EDG, SC Petition at 9-10.
Neither issue (even if fundamental or far-reaching) exists on this record.
SC was not barred from any discovery at all, and it was not pre-vented from presenting probative and relevant direct evidence on whether the NRC Staff consistently interpreted and applied GDC 17 to require a mar-gin.
Likewise, contrary to SC's statement, the Appeal Board did not con-clude that an EDG with insufficient capacity and capability could be found dCCeptable through the application of the single failure criterion.
Rath-er, the Appeal Board concluded that the Shoreham EDGs were adequate, that each had sufficient " capacity and capability" under GDC 17 and that, col-lectively, the EDGs satisfied the single failure criterion.
ALAB-824 at 8, 12-14.
ll.
COMMISSION REVIEW IS UNWARRANTED A.
The Appeal Was Properly Decided v
SC based its appeal on a claim that the proffered evidence should have been admitted because it would show that GDC 17 has been consistently interpreted and ap-plied to require that the Maximum Permitted Load 8 of emergency diesel generators must be substantially higher than their MESLs.
SC Appeal Brief at G r, passim.
The excluded evidence shows no such thing, Nor does it show, as SC claimed on appeal, that GDC 17 has been consis-l tently construed to require margin sufficient to accommodate operator error loads.
Id. at 7.
The Appeal Board correctly recognized that the excluded evidence lacks any probative value on the question whether GDC 17 has been consistently interpreted and applied to require any margin.
It shows noth-ing more than alleged differences between peak loads and diesel engine rat-ings at certain selected plants, importantly, it does not show whether the Staff required any specific margin pursuant to GDC 17.
See ALAB 824 at 8-10.
To be evidence of a consistent NRC Staff interpretation or applica-tion of GDC 17 requiring a margin, the excluded evidence would have to show more than the more existence of margins; it would have to show that the NRC Staff required or imposed these operator error margins as a result of its interpretation of GDC 17.
The excluded evidence does not show this.
8 The term " Maximum Permitted Load" does not appear in the regulations or the regulatory guides.
Colned by SC, the term has no fixed or generally accepted meaning.
In this context, it appears to be equivalent to the qualified load, a
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To be evidence of a consistent NRC Staff interpretation or applica-tion of GDC 17 requiring a margin, the excluded evidence would have to show that the allegedly required margin exists at all plants. 'It does not show this; rather, it purports to show margins only at selected plants, some of which were licensed long before the promulgation of GDC 17.
To be evidence of a consistent NRC Staff interpretation and applica-tion of GDC 17 requiring margin to accommodate operator error loads, the excluded evidence would have to show that the allegedly required margins encompass operator error loads at all plants. 8 Again, it does nut show this either.
indeed, it contains no information at all concerning operator error loads.
Finally, to be evidence of a consistent NRC Staff interpretation or application of GDC 17 requiring'a margin, the excluded evidence would have to show some consistency in the margins allegedly required.
This, too, it fails to show.
On the contrary, the excluded evidence reflects a wide variation in margins, ranging from 3% to 100%.
On its face, therefore, even if the excluded evidence showed GDC 17 margins required by the NRC St off, which it does not, it would plainly reflect no consistent interpre-tation requiring a particular margin.
In sum, the proffered evidence fails of its essential purpose:
It does not show consistent NRC practice or intorpretation of GDC 17.
- Indood, 8s As noted by the Appeal Board, the excluded evidence lacked any infor-mation for PWR plants, and thus could not demonstrate consistency of inter-protation and application.
ALAD 824 at D.
SC cannot correct this infirmi-ty by arguing that the Appeal Board selectively used data from one PWR, to the exclusion of PWRs that might support SC's position.
SC Petition at 8.
It is the absence of PWR data that is among the many fatal flaws of the ex-cluded evidence.
it shows nothing at all about NRC' practice or interpretation of GDC 17.
It is not probative of any matter in issue.
Accordingly, it was properly ex-cluded as irrelevant and immaterial."
B.
No important issue of Law or Policy Presented' Unable seriously to challenge the Appeal Board's affirmance that the excluded evidence lacks probative value and is irrelevant, and conscious that this issue does not warrant Commission review, SC now seeks to shift and broaden the focus of the appeal.
It erroneously claims that the appeal presents two issues warranting Commission review: (1) whether a party can be absolutely barred from discovering, eliciting and presenting testimony and evidence on interpretation and application of an NRC regulation and (2) whether EDGs without sufficient capacity and capability to perform their safety functions may nonetheless be approved because the single failure criterion postulates the failure of only one inadequate diesel.
Neither the appeal nor the record presents these issues.
SC takes issue with the Appeal Board's observation that the excluded evidence does not contradict the NRC Staff's statement on appeal that GDC 17 has not "been construed as requiring margin to accommodate operator error." SC incorrectly claims that this statement concerning the require-mont of margin was not in evidence.
SC Petition at G 7.
On the contrary, the statement was fully and properly cited to the record below.
See NRC Response to Appeal at 12-13.
It is astonishing that SC should claim that this issue was not fully and fairly litigated.
Numerous hearing days were devoted to it with, as the Licensing and Appeal Boards agreed, the record unmistakably demonstrating that GDC 17 has not been construed as requiring margin, including margin to accommodate operator error.
Sco, e 0..
2 LOP 85 18, 21 N. R.C.1G37,1698 (1985).
Pursuant to 10 C.F.R. 5 2.780(b)(4)(i), Commission review is not ordi-narily granted.
To win discretionary Commission review, SC must, inter alla, demonstrate the existence on appeal of an important question o@-
hc policy or of a matter that could significantly affect the environment or the public health and safety.
See 10 C.F.R. $ 2.780(b)(4)(i).
Commis-sion review of any fact issue is plainly inappropriate as the Licensing Board and the Appeal Board did not disagree on any issue of fact or law.
See 10 C.F.R. 5 2.78G(b)(4)(ii).
1.
SC Not " Absolutely Barred" from Discovering and Presenting Evidence First, SC's claim that it was barred from pursuing discovery on the NRC's interpretation and application of GDC 17 is at best disingenu-ous.'
The record flatly refutes this claim.
SC elected to depose only two NRC Staff witnesses.
It was not prevented from deposing more; it simply chose not to do so.
In any event, the two witnesses deposed were appar-ently knowledgeable concerning NRC interpretation and application of GDC 17
- and SC was not restricted from exploring this issue with them.
In neither deposition did NRC Staff counsel instruct the witnesses not to answer any SC question and in neither deposition did the witnesses decline to answer any SC question.
In short, SC was free in these depositions. to ask direct questions concerning the NRC's interpretation and application of GDC 17.
Thus, to claim now that it was " absolutely barred from discovering" evi-dence on the interpretation and application of GDC 17 is an impermissible and disingenuous distortion of the record.'
Especially misleading and inaccurate is SC's claim that this appeal includes the Licensing Board's rejection of a portion of the contention early on and that this rejection somehow served'to limit SC's scope of dis-covery.
SC Petition at 3.
In the first place, the rejection of the con-tention was mentioned only in passing in a footnote and was not properly raised in this appeal, indeed, the footnote does not even claim that the rejection was erroneous.
SC Appeal Brief at 8 n 8.
Moreover, it is surprisi.19 that SC now claims that the rejection of the contention somehow limited discovery in light of SC's counsel's representation to the Appeal Board that the excluded evidence concerning loading conditions at other plants was within the scope of the ultimately admitted contention.
Oral Argument at II, 24.
Counsel did not argue orally before the Appeal Board that a rejection of the portion of the contention early on was a focus of its appeal.
In light of the record below, it is ludicrous that SC would now claim that the Appeal Board " inexplicably" failed to address rejection of a portion of SC's contention.
SC Petition at G.
This was vividly confirmed at the Appeal Board argument.
There, in a colloquy between Judge Rosenthal and Staff counsel, it was established (i)
(footnote continued) u
i Equally without merit is SC's claim that the L.icensing Board re-fused to permit SC to cross-examine LILCO and NRC witnesses on the inter-pretation and application of GDC 17.
SC Petition at 4, 6.
Again, the record belies this claim.
In the two instances cited by SC, the Board con-sistently ruled only that the specific details of diesel generators not in issue were irrelevant.
Examination on general industry practice and past and current interpretation and application of GDC 17 by the NRC Staff was allowed.
Tr. 27239-47, 28363-67.
Indeed, SC and other parties fully ex-plored through cross-examination the interpretation and application of GDC 17.
See, ea, Tr. 27947-60, 27968-90, 28172-74, 28348-53.
C ros s-examination was clearly allowed to elicit directly whether the capacity and capability of EDGs must accommodate operator error loads.
EA, Tr.
27796-97, 28174, 28277-81.
Fur'thermore, while SC claims that restriction of cross-examination was specifically raised on appeal, SC Petition at 5, it was afforded no more status than a single footnote, and then was limited to the two instances discussed above in which specific details were (footnote continued) that the Stff had made available for deposition or other discovery all of I
its trial witnesses, including Dr. Berlinger and Mr. Knox, (ii) that SC had l
sought no discovery beyond these witnesses and (iii) that Dr. Berlinger and Mr. Knox were knowledgeable concerning the Staff's GDC 17 practice and that the Staff did not resist any SC discovery.
The following question and an-swer concluded the colloquy:
JUDGE ROSENTHAL:
In any case, if I understand you cor-rectly, the Staff interposed no obstacle to [SC) reaching Staff witnesses who would have been knowledgeable on the subject of what the Staff practice was with respect to the interpretation and application of GDC 17 in this respect?
MR. GODDARD:
That is correct...
Oral Argument at 53.
._.- correctly held to be irrelevant, SC Appeal Brief at 10 n.10.
See also Oral
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Argument at 16-18.
2.
GDC 17 Was Properly Construed According to SC, the Appeal Board determined that even if the Shoreham EDGs are of insufficient capacity and capability to meet the re-quirements of GDC 17 because of inadequate Maximum Permitted Loads, they would nevertheless be acceptable because even if one EDG were lost, the other two would be sufficient to perform the necessary safety functions.
SC Petition at 5, 9.
This is a blatant misrepresentation of the Appeal Board Decision and the record.
None of the Shoreham EDGs was held to have inadequate capacity and capability.'
Contrary to SC's Petition, the Appeal Board decision does not establish a dangerous interpretation of GDC 17 al-lowing for EDGs of insufficient capacity and capability on the basis that GDC 17 only permits the postulation that a single inadequate EDG will fail.
See SC Petition at 10.
As SC admits, GDC 17 requires that the emergency power supply provide sufficient power to perform its safety functions, even in the event of a single failure.
SC Petition at 9.
The Licensing Board found, and the Appeal Board affirmed, that GDC 17 does not require margin to accommodate operator error.
ALAB-824 at 8; LBP-85-18, 21 N.R.C.1637,1698 (1985).
Rather, compliance with GDC 17 is shown by ensuring that the plant's design loads, defined by lEEE-387-1977 as being those necessary to perform the safety functions, do not exceed the capacity and capability of the EDGs.
Significantly, SC did not appeal the Licensing Board's conclusion that the Shoreham EDGs have adequate capacity and capability to service the plant's design loads as required by GDC 17.
See LB P-85-18, 21 N. R.C. 1637, 1689-1704 (1985); sce also ALAB-824 at 11-14.
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The design load does not include loads attributable to operatc,.* error.
LBP-85-18, 21 N.R.C.1637,1698 (1985).
Once sufficient capacity and capa-bility is established under this criterion, it must also be shown, not as a substitute but rather in addition, that even given the failure... any one EDG due to operator error or other cause, sufficient capacity and capabili-ty are retained in the remaining EDGs to perform the required safety func-l tions.
ALAB S24 at 12.
Contrary to SC's Petition, this is the interpreta-tion of GDC 17 adopted by. the Licensing Board and affirmed by the Appeal Board in its decision.
It is correct and-raises no issue requiring Commis-sion review.
Ill.
CONCLUSION SC's Petition does not and cannot present any substantial basis for Commission review.
Issues relating to the Shoreham EDGs have been thor-oughly and exhaustively litigated.
The hearings were extensive.
They con-sumed 42 days, involved the testimony of 32 witnesses, covered 8,127 tran-script pages and included consideration of 190 admitted exhibits.
On the basis of this comprehensive record and after consideration of 453 pages of proposed findings, the Licensing Board issued a 117-page decision, concluding that the Shoreham EDGs were satisfactory for the first fuel cycle.
As the Appeal Board correctly noted, the SC appeal concerned only the exclusion of certain evidence purportedly reflecting EDG loading condi-tions at selected nuclear power plants.
The Appeal Board thoroughly exam-ined this issue and rejected SC's appeal.
Indeed, the Appeal Board went on, sua sponte, to review the evidence on the adequacy of the Shoreham EDGs and concluded in common with the Licensing Board that the EDGs were satisfactory.
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SC's Petition misstates and distorts both the proper scope of appeal and the Appeal Board's decision, all in a vain attempt to meet the Commis-sion's discretionary criteria for review.
Contrary to SC's claim, it was not " absolutely barred" from discovering and presenting probative evidence on the interpretation and application of GDC 17.
Such evidence was adduced j
and presented in the record and SC's real grievance is that this evidence was contrary to its bald assertions.
Likewise, contrary to SC's Petition, the Appeal Board did not decide that the Shoreham EDGs had insufficient ca-pacity and capability but were nonetheless acceptable through the applica-tion of the single failure criterion.
In light of this thorough review and in light of SC's failure to meet any of the criteria set forth in 10 C.F.R. 5 2.786(b), Commission review should be denied.
Respectfully submitted, LONG ISLAN LIGHTING COMPANY
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W. Taylor Reveley, lll T. S. Ellis, Ill
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Hunton t, Williams P. O. Box 1535 Richmond, Virginia 23212 DATED:
December 23, 1985
f LILCO, Dacember 23, 1985 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL I certify that copies of the Brief in Opposition to Suffolk County's Peticion for Review were served this date l
upon the following by first-class mail, postage prepaid.
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Nunzio J. Palladino, Chairman Howard A. Wilber U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Commissioner Lando W. Zech, Jr.
Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Lawrence Brenner, Esq.
Washington, D.C.
20555 Atomic Safety and Licensing Board Commissioner James K. Asselstine U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Peter A. Morris Commissioner Frederick M. Bernthal Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Commissioner Thomas M. Roberts Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Dr. George A. Ferguson Washington, D.C.
20555 Atomic Safety and Licensing Board Alan S. Rosenthal, Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Secretary of the Commission Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Gary J. Edles Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Lawrence Coe Lanpher, Esq.
U.S. Nuclear Regulatory Kirkpatrick & Lockhart Commission 1900 M Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20036 i
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. Fabian G. Palomino, Esq.
Secretary of the Appeal Board Special Counsel to the Governor U.S. Nuclear Regulatory Executive Chamber, Room 229 Commission State Capitol Washington, D.C.
20555 Albany, New York 12224 Edwin J. Reis, Esq.
Bernard M. Bordenick, Esq.
U.S. Nuclear Regulatory Commis sion Washington, D.C.
20555 L
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Jh-g.1 hMII W. Taylor Reveley, III T. S. Ellis, III Hunton & Williams P. O. Box 1535 Richmond, Virginia 23212 DATED:
December 23, 1985 l
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