ML20148U616
| ML20148U616 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/22/1988 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5458 OL-6, NUDOCS 8802040070 | |
| Download: ML20148U616 (7) | |
Text
. _ _ - - - _ _ _ - _ - _ _ _ _ _
5957 ou22/88 DOCKETED USHRC UNITED STATES OF AVERICA 6
NUCLEAR REGULATORY COMMISSION gg) p3 ye3 l
l BEFORE THE ATOMIC SAFETY AND LICENSING BOA @J CF ECrc it U m
1
]
In the Matter of 1
1
)
LONG ISLAND LICHTING COMPANY
)
Docket No. 50-322-OL-6
)
(Emergency Planning) 6 (Shoreham Nuclear Power Station,
)
r j
Unit 1)
)
I 5
NRC STAFF COMMENTS ON THE APPROPRIATE SEPARATE FORUM TO I
1 HEAR EVIDENCE ON THE RELEVANCE OF PENDING EMERGENCY PLANNING
_ CONTENTIONS TO LlLCO'S APPLICATION FOR A 25% POWER LICENSE i
1.
INTROD UCTION_
i e
t l
In its Memorandum and Order (In Re:
LILCO's Request for l
1 i
Authorization to Operate at 25% of Full Power), dated January 7, 1988 a
f
("Order"), the Licensing Board determined that the applicant is entitled i
to pursue its request for a 25 % power license under its theory that the
/
- i pending emergency plann'ng contentions are not significant fer the plant in question (under to C.F.R. Section 50.47(c)(1)). O Order at 7.
It
}
t j
ruled that Intervenors are entitled to be heard on whether their i
l cnntentions are relevant to the application, as provided under Section l
l 50.57(c), j d,.
at 7, and that further opportunity for Intervenors to l
j present their position should await publication of the Staff's Safety
[
I i
1
)
1/
The Board determined that since LILCO is "entitled to explore all j
possibilities afforded by NRC regulations for obtaining ar operating i
j license for Shoreham within a meaningful time frarre.
It is no l
longer open for the parties to argue that no proceeding be i
i undertaken or that it be long deferred on grounds of excessive burden or lack of resources." Order at 12.
I l
L A
I 91 o
=
t i
I Ev.nuation of the LILCO proposal. 2I M. at 11.
With regard to LILCO's
<equest for appointment of a new licensing board to hear these matters, the Board determined to separate out this portion of the proceeding for consideration by another board, a special master, alternate board member or technleal interrogator, in accordance with the authcrity in 10 C.F.R. 1 Section 2.722.
M. at 10-11.
On this last matter the Board requested j
the parties' views on the relative merits of the options for separate consideration.
Id.
at 11.
The S taff's comments recommending appointruent of a fpecial Master - are provided belcw.
i i
11 DISCUSSION As set forth in the Staff's previous filings on this application, II the Staff argued that Section 50.57(c) contemplated consideration by the sitting licensing board of the relevance to the low power license i
2/
The Board also "directed" the Staff to proceed with a review of LILCO's 25% power application.
Id. at 11,15.
While the Staff does not here oppose the resumptioT of Staff review of the LILCO technical proposal regarding the lower accident risks at 25% power operation, the Staff notes that the L. snsing Board's direction to the Staff to do so is contrary to law.
Leenerally, licensing boards have no authority to order the preparation of Staff studies or analyses.
See, Carolina Power & Lloht Co.
(Sharon Harris Nuclear Power PTant)
CLI-80-12, 11 NRC
- 514, 516-17 (1980);
Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 5 RRC 194, 206-07(1978); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), LBP-63-36,18 NRC 45, 48 (1983) New England Power Co., (NEP, Units 1 and 2) LBP-78-9, 7 NRC 271,W(1978).
3/
See, NRC Staff Response to Board Memorandum Recuesting Parties'
~
Mws on Questions Raised by LlLCO 251 Pcwer Authorization Motion, dated Nos errber 6,
1987, ("Staff Pesponse9 and the NRC Staff Reply to Other Party "fews on Board Cuestiens Concerning LILCO Motion for Authcrization to Operate at 25% Power, dated Cecember 15, 1987,
d 3-i application of the contentions already pending before that Board, and i
that this Board's familiarity with those contentions ws!ghed heavily i
against creation of a separate board.
The Staff adheres to these 1
r views.
l Of the options which the Board is now considering, designation of n i
\\
licensing board suffers the same infirmities previously describad in l
new the cited pleadings.
However, appointment of a Special Master to preelde over evidentiary proceedings leading to a report and recommendation to this Licensing Deard as to the relevance of pending emergency planning contentions addresses many of the Staff's reservations concerning further 1l segmenting of this case.
l As suggested by the Board's Order, at 10-11, the principal initial focus of the proceeding would be on the adequacy of the probabilistic l
risk assessment associated with operation of the Shoreham plant, as i
]
modified, at up to 251 power for an indefinite period.
As previously
{
noted by the Staff, probabilistic risk evaluations present technical issues which do not, per se, overlap with emergency planning.
See, Staff I
l Response, dated November 6, 1987.
The likelihood of an accident, the l
release characteristics of an accident, and the radiological consequences j
of an accident can ce considered without evaluating the irrport of any findings on emergency planning deficiencies.
These issues have not been I
l previously litigated in this case, and accumulated expertise of the sitting i
l Licensing Board with regard to the Shoreham plant would not be wasted.
[
Moreover a Special Master with expertise in this area could be selected.
h j
With regard to the question of relevar.ce, as noted by the Board in 0
l j
sts recent Order, the threshold for showing relevance is much lower than j
i c
i 4
f
4 !
I.
- t j
for showing significance.
Order at 7.
Detailed familiar!ty with the
[
\\
e pending issues is less critical for this determination than for the i
determination of significance.
The decision of relevance will likely turn mainly on whether the technical presentation reveals that, at 25 % power, offsite emergency planning is needed or not, rather than whether particular aspects of the emergency plan are adequate.
In addition, the l,
report of the Special Master would be advisory, and subject to review by f
l j
the Licensing Board, with its expertise in the emergency planning area, j
Order at 10-11.
As a result, appointment of a Special l' aster meets most of the legal l
end policy reservations previously expressed on appointment of a separate
]
licensing board, j
Appointment of a technical interrogator, as provided by Section 2.722 "to study the. written testimony and sit with the presiding officer to hear the presentation and cross-examination by the parties of all witnesses..." offers tou limited assistance.
Appointment of a technica!
interrogator wou'd require the Licensing Board to continue to make all j
prehearing determinations, dealing with discovery and other matters that may arise, as well as to preside over the presentations on the issue of I
+
relevance.
This Board's burden would not be substantially lightened by 1
l this approtch.
Selection of an alternate board member "to sit with the presiding officer..
., like the appointment of a technical interrogator, anticipates i
full participation of the Board on all pending matters and similarly would a
not provide the "separate censideration" the Board seeks.
s l
l L - -- ---
5-Finally, appointment of a separate Licensing Board, while lightening this Board's burdens, would require that additional Board to pass not on!y the technical issues and issues of relevance, but the merits of the case.
Under this option, the value of this Board's expertise on emergen9y planning matters is lost, while requiring the commitment of three judges to deal with matters which could be handled by a quallfied l
Special Master, in addition, a new licensing board might take a different approach to the underlying emergency planning issues possibly leading to inconsistent results on issues already decided by the other sitting Boards in the OL-3 and OL-5 proceedings.
These problems are avolded b, t.ppointment of a Special Master.
1 Ill.
CONCLUSION The Board should appoint a Special Master to hear this application on all matters pertaining to the relevance of the pending erlergency planning contentions to operation at 25% of rated power.
Resp tfully submitted, (d
George F, Jol s Counsel or N Staff Dated at Bethesda, Maryland this 22nd day of January,1988.
OXKEICD LW.C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 5 FEB -1 P3:35 BEFORE THE ATOMIC SAFETY AND LICENSING BOAFACf 0; b h wv JuCK[im A SEimCf.
BRANCS in the Matter of
)
l
)
1 LONG ISLAND LIGHTING COMPANY
)
Docket No.
50-322 -O L-6 l
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
(
l Unit 1)
)
l CEPTIFICATE OF SERVICE i
t l
l hereby certify that copies of "NRC STAFF COMMENTS ON THE APPROPRIATE SEPARATE FORUM TO HEAR EVIDENCE ON THE RELEVANCE OF PENDING EMERGENCY PLANNING CONTENTIONS l
TO LlLCO'S APPLICATION FOR A
25%
POWER LICENSE" in the i
j above-captioned proceeding have been served on the following by deposit I
in the United States mall, first class or, as Indicated by an asterisk, l
t through deposit in the Nuclear Regulatory Commission's internal mall system, this 22nd day of January 1988.
4 I
Jarres P. Cleason, Chairman
- Joel Blau, Esq.
F Administrative Judge Director, Utility Intervention i
Atomic Safety and Licensing Board Suite 1020
(
U.S. Nuclear Regulatory Commission 99 Washington Avenue
[
Washington, DC 20555 Albany, NY 12210 t
il I
Jerry R. Kilne*
Fabian G. Palomino, Esa, j
]
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Beard Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 l
Frederick J. Shon*
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of i
l Atomic Safety and Licensing Board Public Service 3
U.S. Nuclear Regulatory Commission Three Empire State I'lara j
Washington, DC 20555 Albany, NY 12223 l
Philip VcIntire W. Taylor Reveley Ill, Esq.
l
{
Federal Emergency Management Donald P. Irwin, Esq.
j Agency Hunten & Williams i
26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 i
New York, NY 10278 Richrrond, VA 23212 1
Douglas J. Hynes, Councilman i
Town Board of Oyster Bay Town HaJ j
Oyster Bay, New York 11771 i
i i
(
_ - _ _ _ _ _ _ - _ _ _ _ _.. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ _. Stephen R. Latham, Esq.
Herbert H. [3rown, Esq.
0 Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety end Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 i
kashington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel 4
l Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.
j North Shore Committee Attoi ney Generai of the State j
P.O. Box 231 of New York Wading River, NY 11792 Attr :
Peter Blenstock, Esq.
Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.
General Counsel Of0ce of General Counsel Long is!and Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Alfred L. Nardelli, Esq.
Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living Room 3-118 Box 944 New York, NY 10271 Huntington, New York 11743 MY Counsel fo N Staff