ML20205N418
| ML20205N418 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/31/1988 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7415 ALAB-902, OL-3, OL-6, NUDOCS 8811040142 | |
| Download: ML20205N418 (10) | |
Text
g/f 10/31/88 h'
003ETED US 'a t UNITED STATES OF ANERICA NUCLEAR REGULATORY COMMISSION g my 2 P4 :04 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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w In the Natter of Occket No. 50-322-OL-3 1,0NG ISLAND LIGHTING COMPANY (Energency Planning) 1 Docket No. 50-3??-OL-6 (Shoreham Nuclear Power Station, h
(25% Power)
Unit 1)
)
NRC STAFF RESPONSE TO LILCO'S REQUEST FOR If0EDI, ATE AUTHORIZATION TO OPERATE AT 25% POWER I.
IMRODUCTION On October 21, 1988 LILCO filed its "Request for Innediate Authorization i
to Operate at 25% Power" ("Recuest").
The NPC Staff supports llLCO's Request to the extent it asks that the Director of Nuclear P.eactor Regulation be l
authorized to issue a 25% of rated pewer license for Shoreham.1/
!!. PREFACE As stated in the "NRC Staff Answer to LILCO Request for Resumption of l
Imediate Effectiventss Review er for Stay," filed October 31,198E with the Commission:
A fundamental issue pervades the entire Shoreham proceeding at this time whether Intervenors were properly dismissed by the OL-3 Licensing Ecard from 1/
LILCO's Request asks that "it be immediately authorized to operate the
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Shoreham Nuclear Power Station at 25% of its rated power." Under 10 C.F.R. ! 50.57(c) the Beard may not itself authorize such operation, but may only authorize the Director of Nuclear Reactor Regulation, after he is satisfied as to ratters within his purview, to issue such a license.
!?oreover, such authorization wcule entail Comission "irrediate effectiveness" review pursuant to 10 C.F.R. ! 2.764(f)(2).
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further participation as parties in the Shoreham operating license proceeding on the grounds of serious misconduct.
See LBP-B8-24, slip op at 148.
In ALAB-902 the Appeal Foard concluded that the OL-3 Licensing Board did not have
,iurisdiction to dismiss Intervenors from the entire proceeding. ALAB-902, slip op. at 20. That matter is the subject of related petitions for Corimission review filed by LILCO.
Although these procedural questions may be resolved as a result of LILCO petitions for Comissicn review, the case as a whole will remain in the shadow of further procedural complexity until the Appeal Board (and perhaps subsequently the Comission) resolves the question of the merits of the OL-3 Roard dismissal sanction.
If the dismissal sanction is deternined to have been improperly impesed, LBP-88-24 itself may require revision to address the cententions before the OL-3 Board on the merits rather than as dicta (isiiTete litigation of see slip op, at 131-147),and it will be necessary to co other aspects of the proceeding such as contentions relating to the 1988 exercise, regardless of the procedural question of jurisdiction to impose sanctions.
On the other hand if the sanction of dismissal imposed by LBP48-74 is l
sustained.
Subsequent disnissal from other parts of the proceeding is a likely result given the character of the misconduct found by the OL-3 Board even if the procedural questions are decided in terms of sepa rate sanction l
jurisdiction consistent with ALAB-902.
(footnote I
omitted).
1 Staff Answer at 11-12.
I Similar questions overshaccw LILCO's notion requesting authority to cperate at 75% full power.
These questions are best expeditiously resolved by permitting the related matters pertaining to both 25% power operation and full power operation to be addressed by the Corrrnission in connection with its review of LILCO's Petitions for Review of ALAB-901 and ALAB-902 and its "imrediate effectiveness" review of both full power and PS% power operation.
It is in this context that the Staff's discussion and position on LILC3's motion 's submitted.
% III. DISCUSSION On April la, 1987 LILCO requested imediate Comission authorization to increase power at Shoreham from S% to 25% of rated capecity, and rroved the Comission for expedited consideration of its request. 2_/
The Comission denied the request, and stated that LILCO might file the request under 10 C.F.R. I 50.57(c) "with the Licensing Board". CLI-87-4, 25 NRC 882 (1987).
On July 14, 1987, LILCO's "Motion for Authorization to Increase Power to 25%" was filed before this Board.
The Motion refiled LILCO's request for a 25% license which had been filed with the Comission.
On July 14, 1987, LILCO also filed with the Commission a "Notion for Designation of Licensing Board" to consider l
the 25% request on its merits.
By Order dated August I?, 1987, the Comission specifically referred 1
LILCO's 25% Motion to this "0L-3" Licensing Board, and authorized the Board "to take appropriate action under the Comission's rules concerning the Motion".
The Comission's Order was acknowledged by this Board in its "Notice to the Parties", dated August 31, 1987; and in its "Memorandum to the Parties" of 1
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Request for Authorization to Increase Prver to 25% and Motion for Expedited Comission Consideratien, dated April 14, 1987.
- ,e October 6, 1987, the Board requested the parties to submit briefs concerning how LILC0's Motion comports with the requirements of 10 C.F.R. I 50.57(c). M Subsequently, in its Order of January 7,1988 (LBP-88-1, 27 NRC 7 (1988)),
the Board noted that LILCO was entitled to proceed with its request for 25%
power operation under 10 C.F.R. I 50.57(c), and that the Board was empowered to grant LILCO's request upon a finding that there were no pending relevant contentions.
27 NRC at 17.
By Order dated February 26, 1988 the Board directed the parties to file briefs on "the impact of pending energency
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The October 6.1987 Pemorandum is the first reference to an OL-6 docket.
4 The Board members in docket Dl.3 and OL-6 were the same, and no Federal Register or other notice was issued constituting a separate Bocrd in a manner contrary to the referrel by the Comission to the OL-3 Board.
In the Notice to Parties dated August 31, 1987, the OL-3 Board requested correents from the parties on certain matters includino whether the Board should be reconstituted to establish a separate Board to handle the 25%
motien or whether a special traster should be appointed.
The Staff and Interverers opposed the creation of a new Board.
The tem "0L-6" appears to be an administrative aid to be used in filing papers rather than the designation of a separately constituted licensing board.
No separate Ecard was created ousting the OL-3 Board from considering the 25% power issues.
This is further shown in the Licensing Board's Memorandun and Order (InRe:
LILCO's Request for Authorization to Operate at 25% of TuTTPower)', dated January 7, 1988, wherein the Board stated that the
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complexity of LILCO'S technical submittal together with the existing burdens on this Coard could call for "the appointnent of a separate Board, the appointment of a Special Master, the appointment of an Alternate Board Member, or a Technical Interrogator." Id. at 10.
After hearing from the parties, in its Order Appointire Alternate Board Member, dated February 26, 1988, the Licensing Board did not request the appointment of a separate board, but secured the appointrent of David L. Hetrick as an "Alternate Board Member for the purpose of assisting the Board on LILCO's Motion of July 14, 1987 for an increase of power to 25% at its Shoreham nuclear facility."
The Order provided that "[i]n accordance with 10 C.F.R. I 2.722(a)(3). Judo
- Hetrick's report is advisory only. The Peard retains final authority with respect to this matter." Id.
. I contentions on a reasonable assurance finding authorized by 10 C.F.R.
I50.57(c)."
In its Response E/ of March 9,1908 to the Licensing Board's Order of February 26, 1908, the Staff stated that it was working on a determination "whether there are any new safety issues of significance associated with continuous operatien at P5 percent power and whether there are significant differences in the progression of accidents at 25 percent pcwer as enripared with accidents at 100 percent power."
Response at 1.
On October 6, 1988 the Staff issued a safety evaluation report 5/ (SER) which assesses the validity of LILCO's claim 1/ th0" the risk and consequences of accidents are greatly reduced at 25% power as corpared to full-power eperation. E/ Review at 1.
In the SER the Staff concluded as to 25 percent power authorization:
1.
That the overall core melt frequency is reduced (without verifying the absolute magnitude of the reduction);
2.
That offsite radiological consequences are reduced;
/
5 NRC Staff Response to Board Order on Relevaree of Pendin Emergency Planning Contentions to Operation 25 Percent Power ("Response")g 6/
Safety Evaluation of the Pequest to Operate the !boreham ?!uclear Power Station at 25 Percent Power (Enclosures 1, 2 and 3 to the NRC Staff's Technical Review of a Request from Long Island Lighting Company for Authorization to Operate the Shoreham t:uclear Power Station at a Power Level Up to Twenty-Five Percent of Full-Pated Power ("Review").
7/
LILCO's claim and supporting analyses were submitted in its Request for Authorization to Increase Power to 25%. filed before the Comissier en April 14, 1987.
P/
The Staff has suteitted the SER to this Licensing Board by letter dated October 17.1968.
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4 3.
That significant delays would occur in all postulated accident 4
sequences and at every stage of accident development.
Id. at 4-5.
i On September 23, 1988, this Licensing Coard had issued its Concluding l
l Initia,1,_ Decision on Energency Planning, LBP-E8-24, 28 NRC,_, (1988).
In the i
i Decision the Board found the Intervenors to be in default of Bnard Orders on discovery and dismissed them from the proceeding. Slip op, at 148.
The Board 1
also authorized the Director of Nuclear Peactor Regulation to issue a
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full-power operating license for Shoreham. Id. at 148-40.
The full-power license authorization recessartiv included the 25% power authorization (and any
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other power level in the transition to full power).
However, on October 7.
i 1988, the Appeal Board held that, as a matter of jurisdiction, the OL-3 B'ard I
i did not have the authority to dismiss Intervennrs "from the proceeding now before the OL-5 Licensing Board", and vacated this Board's authorization to issue a full-pcwer license. ALAB-902, 28 NRC _ (1968), Slip op, at 20.
I i
j The decision in ALAB-902 vacated the authoritation for a full-pcwer license only on the grounds that this Board did not have jurisdiction to j
j dismiss Intervenors from proceedings pending before the OL-5 Licensing Board.
I i
ALAB-902. Slip op, at 20.
However, there is no question that this Board has t
full jurisdiction over matters relating to LILCO': 25% power Nation. As stated
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by the Appeal Board:
Our jurisdictional holding dees not affect in any respect i
the OL-3 Board's authority to dismiss the Governrrents as parties free that part of the proceeding over which the q
OL-3 Board presides.
ALAB-902, slip ep. at 10 (erThasis in original).
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As we have detailed (n.3, supra), this Board has full authority over i
matters concerning LILCO's application for a 25% license.
Those matters were referred to this Board by the Comission, and this Board particularly rejected the creation of a separate Board to consider the 25% license.
Instead, it retained final authority with respect to the 25% power license.
The Board has dismissed Intervenors from the full scope of the proceeding j
before it.
No party exists in the proceeding t'efore this Bnard but the Applicant and the Staff.
LILCO's Motion is unopposed by any party remaining before this Board, 10C.F.R.I50.57(c) states:
]
If no party opposes the motion, the presiding officer will I
issue an order... euthorizing the Director of Nuclear Reactor
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EguTation to make apprcpriate findtrgs... and to issue a license j
for the requested operatinn.
(e5hasis added).
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j Thus, this Board should issue an order authorizing the Director of Nuclear Reactor Regulation to issue a 25 percent power license, i
LILC0 offers as an alternate grounds for granting its Request the argument f
that there are no remairing contentions relevant to LILCO's request to operate j
at 25% power.
Request at p. 10-12.
This argument is erroneous.
As a result of ALAB-902, Intervenors renain as parties to the Shoreham operating license f
j proceeding with respect to matters before the OL-5 Board relating to the 1908 i
exercise.
Intervenors have filed contentions with the OL-5 Board. Although 10 i
i C.F.R.
I50.57(c) does not specifically address a case involving multiple l
1 i
Boards presiding over different aspects of a single overall liter.sint j
proceeding, the better reading of $50.57(c) pemits a party to raise objections to a motten for limited power operation based en pending relevant contentions even though such contentions may be pending before another Licensing Board presiding over a different aspect of the sar.e overall licensing proceeding.
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- Intervenors were entitled to participate as partias before the OL-3/0L-6 Board, Intervenors could raise objections based on contentions pending before the OL-5 Board, if Intervenors showed that such contentions were relevant to operation i
at 25%.
Thus, if Intervenors were entitled to participate as parties before the OL-3/0L-6 Board and raised objections based on relevant contentions, the Licensing Peard would have tn consider such matters in making the findings
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required by 650.57(c).
However, as argued by the Staff. Interveners have already been disnissed by the Licensing Board and are rot permitted to participate further as parties to proceedings before this Board.
Thus LILCO's motion is unopposed and should be granted as uropposed without the need for the Licensing Board to make findings on the matters specified in 150.57(a).
However, as stated above in note 1, such order should authorize the Director of i
j Nuclear Reactor Regulation to issue a license authorizing operation at up to 1
l 25% p'wer upon making findings that the activities authori:ed can be conducted l
l with reasonable assurance of the protection of the health and safety of the r
public and in compliance with the regulations.
i 1
aV. CONCLUSION j
Fursuant to 10 C.F.R.
I 50.57(c), the Board should issue an order authorizing the Director of Nuclear Peactor Regulation to make appropriate
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findings on the matters specified in 10 C.F.R. I 50.57(a) and to issue a license for 25% power operation.
l Respectf Ily submit i
~
i Richar G. Bachmann
]
Counsel for NRC Staff Dated at Rockville, Maryland l
of this 31st day of October 1988 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Y ' P" Docket No. 50-3 d-6('3);['c, W 1
(EmergencyPlanning)
LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-6 (Shoreham Nuclear Power Str, tion, (25% Power)
Unit 1)
CERTIFICAT_E OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LILCO'S REQUEST FOR IMMEDIATE AUTHORIZATION TO OPERATE AT 25% POWER" in the above-captioned proceeding have been servsd on the following by deposit in the United States nail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system or, as indicated by double asterisks, by telecopier, this 31st day of October,1988.
Janes P. Gleason, Chairman
- Joel Blau Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Bored Suite 1020 U.S. Nuclear Regulatory Ccenission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*
Fabian G. Palomino, Esq.
Administrative Judge Richard J. Zahnleuter, Esq.**
Atomic Safety and Licensing Board Executive Chamber U.S. Luclear Regulatory Concission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon*
Jonathan D. Feinberg Esq.
Adn bistrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Comissinn Three Empire State Plaza Washington, DC 20555 Albany, NY 17223 Philip McIntire Ja:nes N. Christman, Esq.
Federal Energency Management Donald P. Irwin Esq.**
Agency Hunton & Williams
?6 Federal Plaza 707 East Main Street Roce 1349 P.O. Rex 1535 New York, NY 10278 Richmond, VA 23217 Douglas J. Hynes, Councilman Marcia Celman, Esq.
Town Board of Oyster Bay Hunten & Williams Town Hall 2000 Pennsylvania Ave., NW Oyster Bay, New York 11771 Suite 9000 Washington, DC 20006
(-
' Stephen B. Latham, Esq.
Herbert H. Brown Esq.
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 and Licensing Washington, DC 20036-5891 Poard Panel (1)*
U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Panel (5)*
Entre State Plaza U.S. Nuclear Regulatory Comission A13any, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Asbare Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street SW Hauppauge, hY 11788 Washington, DC 20472 Anthony F. Earley, Jr.
Dr. Monroe Schneider General Counsel North Shore Comittee Long Island Lighting Corrpany P.O. Box 231 17S East Old County Road Wading River, NY 11792 Hicksville, NY 11801 Ms. Nora Bredes Dr. Robert Hoffran Shoreham Opponents Cealition Long Island Coalition for Safe 195 East Main Street L1ving Smithtcwn, NY 11787 P.O. Box 1355 Massapequa, NY 11758 William R. Cuming, Esq.
Office of General Counsel Alfred L. Nordelli Esc.
Federal Emergency Management New York State Departr:ent of Law Agency 120 Broadway 500 C Street, SW Roce 3-118 Washington, DC 20472 Docketing and Service Section*
Barbara Newman Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Comission Coalition for Safe Living Washington, DC 20555 Rox 944 Puntington, New York 11743 David L. Hetrick Professor of Nuclear and Energy Engireering The University of Arizona Tucson, AR 85721 n
Richard G. tracnmann Ceunsel for hRC Staff