ML20151T446

NRC Staff Response to Lilco & Intervenors Briefs of 880401 on Motion to Authorize Operation at 25% of Full Power.* NRC Believes Proceedings Should Continue to Determine Whether Lilco Entitled to License Request.Certificate of Svc Encl

ML20151T446
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/20/1988
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6142 OL-6, NUDOCS 8804290025
Download: ML20151T446 (8)

Text

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. hh 04/20/88 00LMETE0 USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 APR 25 P4 :00 0FFICE C: L ;n u.i BEFORE THE ATOMIC SAFETY AND LICENSING HOAffo hEim DR11;:n( sew a In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-6

) (25% Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF'S RESPONSE TO LILCO'S AND INTERVENORS' BRIEFS OF APRIL 1,1988 ON MOTION TO AUTHORIZE OPERATION AT 25% OF FULL POWER INTR OD U,C_ TION

Dy Order of February 26, 1988, the Board directed the parties to file briefs by April 1, 1988, "on the impact of pending emergency 4 contentions on a reasonable assurance finding authorized by 10 C.F.R. 6 50.57(c)." The parties were "to develop whether such contentions are substantively relevant to a 251 power operation of the Shoreham Nuclear Facility." The Order further provided that responses to those briefs which might be submitted twenty days after April 1,1988.

in a pleading of March 9,1988, the Staf f advised the Board, that although it projected completing work on whether there are issues of safety significance to operation at 25% power and the difference in the progression of accidents at that power level as compared with accidents at 100 percent power in the late spring, it would not be able to ascertain whether pending contentions are substantively relevant to operation at a 25% power level until early fell of this year. I The Staff here responds to the briefs of the other parties filed on April 1,1988. l g

8804290025 880420 0 y2 i

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DISCUSSION i

In its April 1,198e pleading, LILCO again Indicates that finding thas i

present contentions are not relevant to c, erations at 25% power requires a detailed analysis of risks at that power level as compared with operations at full power. LILCO's Brief at 2-10. On the basis of such an analysis it is maintalncd that It can be ascertained that the remaining contentions do not have substantive relevance to operations at 25% power and that t

Shoreham may be authorized to operate at that power level. Id. at 11-24.

As the Staff does, LILCO recognizes that action on its request to operate at 25% power reautres an analysis of the validity of its projections of

' differences in accident sequence progressions at a 25% power level ir.

cor trast with operations, at full power. Id. at 8-10.

lhe Intervenors, although recognizing that accident sequences at 25% of full power has relevance to the remaining contentions, maintain that the application for autliority to operate at a 25% power should be ,

summarily rejected. Ocvernments' Brief at 1-2. In doing so they ignore the directions of this Board in its February 26, 1988 Order of the matters to be encompassed in the subject pleadings, as well as its January 7, 1988 Memorandum and Order, which con idered and rejected most of the .

l arguments Intervenors again make to have the Board summarily reject t

1.lLCO's application. Memorandum and Order at 7. O l

]  ;

1/ The Intervenors indicate in their brief that they have not yet

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started e review and analysis of the application. At 4. They state that such a review must await the completion of the Staff review (at 3), and that it would thereafter take IntervenorsThe at Intervenors, least as longareat the Staff to review the application. At 5.

wrong. They, as other parties in NRC proceedings, are Ne obl' gated to ,

reply to an application, not the Sta ff's review. cenerally,  !

(FOOTNOTE CONTINUED ON NEXT PAGE) 3

• ) This Board has previously rejected arguments that consideration of the 25% license application was foreclosed because the LILCO plan was not found to comply with NRC regulations. Memorandum and Order, January 7, 1988, at 7. The question upon consideration of the subject motion is whether emergency planning issues are "significant for the plant in question" (10 C.F.R. 9 50.47(c)(1)), and whether those issues "are relevant to the activity sought to be authorized" (10 C.F.R. 6 50.57(c)l.

Id. at 6-7. Thus the bulk of Intervenors' brief (at 8-18) concer ning what has been decided in former proceedings is not dispositive, for the question to be determined under LILCO's motion is the relevance and significance of issues where it has not yet been decided that the emergency plan met Commission regulations.

This in turn, as the Board (FOOTNOTE CONTINUED FROM PREVIOU3 PAGE)

Nuclear S tation , Units 1 and 2),

f Duke Power Co. (Catawba CL1-83-19, 17 NRC In41 (1983). The Intervenors have an independent obligation to commence a review of the application now if they seek to oppose it. See Statement of Policy on Conduct of Licensing Proceedings, CLl-81T 13 NRC 452, 45~4 (1981). The l

! Intervenors will forfeit any right to an extension of time to reply to the application if they do not commence a concerted and expeditious l review of the application now.

l The Intervenors also speak of a right to file contentions on the Governments' Brief at 4, n.8. Section 25% power application.

i 50.57(c) of 10 C.F.R. provides that the only matters to be heard on for low power operations is whether Dresent an application l

"contentions are relevant to the activity to be authorized." Thus

(

new contentions are not to be submitted on the application.

Further, if new cor.tentions were permissible on the application they would be out of time as they would have been due shortly after the application was filed. See Ca ta wba. , supra. This Board has l

indicated that it did not contemplate the filing of new contentions, but would give the Intervenors "further opportunity to state with basis And specificity the way in which any of Memorandum the present contentions and Order, are relevant to the proposed operation."

January 7,1988, at 11.

l u

I Y 4 recognized , is dependent on the nature and scope of emergency planning needed at 25% power. & To merely say that areas where compliance has not been found prevents issuance of a license only restates the Intervenors' claim that a low power license may not issue, without showing whether those areas are substantively relevant to the issuance of such a license. 2,/

Further, as this Board has recognized "fundamental flaws are by no means uncorrectable flaw s. " Memorandum (Extension of Board's Ruling and Opinion on LILCO Summary Disposition Motions etc.), April 8,1968 at 42, see also 40. Thus proceedings to determine whether LILCO is entitled to a 25% power license should go forward at the same time as l

l pending scheduled hearings and a new exercise are going forward to see if the fundamental flaws have been corrected.

l The Intervenors' also argue that unless an exemption is obtained under 10 C.F.R. 9 50.17(a), compilance with Appendix E to 10 C.F.R.

l

! Part 50 is required whether or not the requirements of 10 C.F.R.

i Governments' Brief at 22-23. As we have stated 9 50.47(c)(1) are met.

under 10 C.F.R. 9 50.57(c), the question is whether contentions are I

relevant to operation at the power level sought. If the requirements of Intervenors claim that prior Board decisions on certain issues are

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udicata . " Those decisions dealt with the issuance of a license "res C {6MVwer operations, not with whether compliance with those Similarly the provisions was necessary for 25% power operations.

question of whether LILCO's ability to implement the plan is adequate for 25% power operations was not previously ruled upon. Questions concerning the scope of the exercise and the results of the exercise must be viewed under 10 C.F.R. 99 50.57(c) and 50.47(c)(1) in the context of the activity for which permission is sought and whether the deficiencies are significant for the plant in question, i

? ,

1 l

Appendix E are not relevant to such operations a limited power ilcense might be authorized.

Intervenors also argue that the provisions of i 50.47(c)(1) allowing exceptions to be made to emergency planning regulations for "deficiencies j not significant for the plant in question" is only applicable to the l l

provisions of 9 50.47(b) and not to Appendix E. Governments' Brief at 72-23. This ignores that 5 50.47(b)(14) particularly provides that l emergency plans must provide for the exercises mentioned in Appendix E,  ;

and that 9 50.47(c)(1) allows exceptions to be made to all provisions of 6 50.47(b). - As this Board indicated in its Memorandum (Exwnsion of Roard's Ruling and Opinion on LILCO Summary Disposition Motions, etc.),

of April 8, 1988, at 22, the complimentary provisions in 6 50.47 and Appendix E "should be read together where possible." It concluded that she provisions of 10 C.F.R. s 50.47(b), allowed "due allowance for l

l comper,Latory measures... for the requirements of Appendix E also." Id.

The exception to exercise requirements, as well as other emergency planning requirements, might be shown under 10 C.F.R. 9 50.47(c)(1),

when failure to satisfy those requirements "are not significant for the plant in question." b 3/ No amendment to the regulations was needed to include exercise

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requirements, as well as other emergency planning requirments, under the provisions of 10 C.F.R. 6 50.47(c)(1), as all emergency planning provisions must be read together and 9 50.47(b)(14) covers emergency planning exercises.

4/ Intervenors also seek to butress their argument on the need for an

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exemption to waive exercise requirements on the fact that such exemptions were granted in the past where full power operation was f (FOOTNOTE CONTINilED ON NEXT PAGE) l

i. '

No cause is shown to dismiss the subject applicatfon until it is determined whether pending contentions are substantively relevant to the operation of Shoreham at 25% of full power.

CONCLUSION For the foregoing reasons, proceedings should continue to determine whether LILCO is entitled to a license for operations at 25% of rated power under 10 C.F.R. 66 50.57(c) and 50.47(c)(1).

Respectfully submitted, ,

Edwin J. Reis Deputy Assistant Cencral Counsel Dated at Rockville, Maryland this 20th day of April 1483 l

1 l

l l

l (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) sought. Governments' Brief at 22-23. Those instances do not show that such relief is required here where LlLCO seeks an authorization under 10 C.F.R. 6 50.57(c).

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, s KC1ED y ON,WC U

UNITED STATES OF AMERICA 88 Nm 25 P4 :00 NUCLEAR REGULATORY COMMISSION OFFICE OF SI Ud #'

BEFORE THE ATOMIC SAFETY AND LICENSING BONb$Ihc in the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-6

) (25% Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICC i herchy certify that copies of "NRC STAFF'S RESPONSE TO LILCO'S AND INTERVENORS' BRIEFS OF APRIL 1, 1988 ON MOTION TO AUTHORIZE OPERATION AT 25% OF FULL POWER" in the abova-captioned proceeding have been served on the fotfowing by deposit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system , this 20th day of April 1988.

James P. Cleason, Chairman

• Joel Biau , Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Dr. Jerry R. Kline* Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224

! Fredericl: J. Shon* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Servico U.S. Nuclear Regulatory Commission Three Empire State Plaza

! Washington, DC 20555 Albany, NY 12223 David L. Hetrick W. Taylor Reveley fil, Esq.

Donald P. Irwin, Esq.

Alternate Board Member Professor of Nuclear and Energy 707 East Main Street Engineer P.O. Box 1535 The University of Arizona Richmond, VA 23212 Tucson, Arizona 85721

V Herbert H. Brown, Esq, Stephen B. Latham, Esq. Lawrence Coe Lanpher, Esq. #

Twomey, Latham 6 Shea Karla J. Letsche, Esq.

Attorneys at Law Kirkpatrick 6 Lockhart 33 West Second Street South Lobby - 9th Floor Riverhead, NY 11901 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger New York State Energy Washington, DC 20555 Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Soence W. Perry, Esq.

Martin Bradley Ashare, Esq. Ceneral Counsel 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 Anthony F. Earley, Jr. Dr. Monroe Schneider General Counsel North Shore Committee Long Island Lighting Company P.O. Box 231 175 East Ola County Road Wading River, NY 11792 Hicksville, NY 11801 Ms. Nora Bredes Shoreham Opponents Coalition Dr. Rot >ert Hoffman Long Island Coalition for Safe 195 East Main Street Smithtown, NY 11787 Living P.O. Box 1355 William R. Cumming, Esq.

Massapequa, NY 11758 Office of General Counsel Alfred L. Nardelli, Esq. Federal Emergency Management New York State Department of Law Agency 120 Broadway 500 C Street, SM Room 3-118 Washington, DC 20472 Docketing and Service Section* Barbara Newman Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Commission Coalition for Safe Living Washington, DC 20555 Box 944 Huntington, New York 11743 Dr. W. Reed Johnson Philip McIntire 115 Falcon Drive, Colthurst Federal Emergency Management Charlottesville, VA 22901 Agency 26 Federal Plaza Room 1349 New York, NY 10278

/

Edwin J. Reis Deputy Assi ant General Counsel