ML20205N489
| ML20205N489 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/31/1988 |
| From: | Case D, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20205N492 | List: |
| References | |
| CON-#488-7417 OL-6, NUDOCS 8811040169 | |
| Download: ML20205N489 (28) | |
Text
/Y C0tME li.F t.Nif 1
October
'ti-1228 2 P12 :10 og m.
I UNITED STATES OF AMERICA crou
..n 60CnCpg)"' d NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board
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In the Matter of
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)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
l GOVERNMENTS' RESPONSE TO LILCO'S REQUEST FOR IMMEDIATE AUTHORIEATION TO OPERATE AT 25% POWER On October 21, 1988, LILCO filed a Request for Immediate Authorization to Operate at 25% Power ("LILCO's Request" or "Request").
LILCO's Request is a transparent effort to circumvent proper licensing procedures and the required analysis of safety concerns.
Accordingly, three separate reasons compel denial of LILCO's Requests (1) this Board has no jurisdiction to l
act on the Requests (ii) assuming arcuando that the Board has jurisdiction, two members of the Board are disqualified from acting on the Request; and (iii) assuming arauendo that the Board has jurisdiction and is not disqualified, the Request fails on the merits.
Suffolk County, New York State, and the Town of Southamptom (the "Governments") address each of these matters i
below.
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c 0
PD 1
l'a i
o
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i I.
THE BOARD HAS NO JURISDICTION TO ACT ON LILCO'S REQUEST In LBP-88-24,l/ the OL-3 Licensing Board purported to dismiss the Governments from the Shoreham proceeding and authorize full power operation.
LBP-88-24, at 89, 130, 148-150.
The intended scope of LBP-88-24 was broad.
Although the OL-3 I
Board did not expressly identify the OL-6 Docket as one of the l
proceedings from which the Governments were being dismissed, the Board's intent, apparent from LBP-88-24, was to dismiss the i
Governments from the entire proceeding.
The Appeal Board recognized the broad scope of the dismissal sanction ordered in j
LBP-88-24, and the intent of the OL-3 Board cannot be gainsaid.2/
Moreover, the Board's recommendation that a full power license be i
issued necessarily subsumed any pending request for a 25% power f
license.
The Board's decision to dismiss the Governments from
[
the entire proceeding and authorize full power operation, and the l
Governments' notices of appeal from LBP-88-24, divested this f
Board of jurisdiction over LILCO's 25% power request.
i l
i 1/
Lena Island Lichtina Co. (Shoreham Nuclear Power Station, i
Unit 1), LBP-88-24, 28 NRC
, slip op. (Sept. 23, 1988), rev'd and vacated in_nart, ALAS-9677 28 NRC (Oct. 7, 1988).
2/
ALAB Memorandum and Order, Sept. 29, 1988, at 3. Egg also, i
Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-902, 28 NRC (Oct. 7, 1988).
Since the judges presiding over the OL-3 docket are the same judges presiding over the OL-6 docket, it is unclear whether ALAB-902 would bar the j
Board from dismissal of the Governments from the OL-6 docket on jurisdictional grounds.
See ALAB-902 at 4, 7, 9, 10, 11 (emphasizing that Gleason OL-3 Board could not direct dismissal of matters pending before a different Board).
2-
s It is fundamental that jurisdiction passes from a licensing board to the appeal board upon issuance of an initial decision.
Metrooolitan Edison Co. (Three Mile Island Nuclear Station Unit No. 1), ALAB-699, 16 NRC 1324, 1327 (1982).
Similarly, once a licensing board issues its decision and appeals are filed, the Appeal Board, not the Licensing Board, has jurisdiction over new matters which are raised in connection with the matter pending on appeal.
ALAB-901, at 3-4; Georcia Power Co.
(Vogtle Electric Generating Plant, Units 1 and 2), ALAB-859, 25 NRC 23, 27 (1987).
This authority is controlling here.
The Governments' appeal of the Concluding Initial Decision in LBP-88-24, which authorized a full power license, served to divest this Board of jurisdiction over the subsumed 251 power license application.
Furthermore, t".e Appeal Board also has the jurisdiction to entertain new matters if there is a reasonable nexus between the new matters and the issues before the Appeal Board.
Eirainia Electric and Power Co. (North Nuclear Station. Units 1 and 2),
ALAB-551, 9 NRC 704, 707 (1979).
A "reasonable nexus" means a rational and direct link between the new matter and the matter on appeal; a total commonality of issues is not required.
Louisiana Power & Licht Co. (Waterford Steam Electric Station. Unit 31, ALAB-797, 21 NRC 6, 8 (1985).
l Under controlling NRC precedent, therefore, the Appeal Board has jurisdiction over LILCO's Request.
The issues before the t
P Appeal Board by virtue of the Governments' appeal of LBP-88-24 are rationally and directly related to the issues raised in LILCO's Request.
Not only does the global nature of the l
1 sanctions and merits decisions in LBP-88-24 necessarily subsume f
I LILCO's 25% power Request, but LILCO's Request also directly i
^
involves some of the same isnues that are now pending before the f
Appeal Board, for example, the propriety of dismissing the l
l
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1 Governments from the OL-6 and other Shoreham proceedings and the
{
safety consequences of decisions on EBS, schools, and the legal authority contentions.
Accordingly, the scle jurisdiction to I
address LILCO's Request resides with the Appeal Board, and this Board must therefore deny the Requent for lack of jurisdiction.
I 1
II.
JUDGES GLEASON AND KLINE ARE DISQUALIFIED l
1 FROM ACTING ON THE REQUEST 4
Assuming, arouendo, that the OL-6 Board has f
i jurisdiction to consider LILCO's Request, Judges Gleason and j
Kline are not qualifled to preside over the proceeding relating to that Request.1/
LILCO has asked this Board for two forms of f
i j
reliefs (1) dismissal of the Governments from the OL-6 1
I proceeding and (2) authorization to operate at 25% power.
This l
)
Board cannot rule on either request, for Judges Gleason and Kline have shown bias against the Governments and cannot act fairly and l
i impartially in this matter.
l l
l 1/
Judge Shon's dissent to LBP-88-24 reveals that he does not
]
share the bias against the Governments that is evidenced in the l
majority opinion.
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f 4-I r
f
I The need to disqualify Judges Gleason and Kline is plain.
a j
It is axiomatic that due process entitles the Governments to a t
I fair hearing before an impartial tribunal.
In Re Murchison, 349 j
i l
U.S. 133, 136 (1965); Barry v. Heckler, 620 T.Supp. 779, 782
(
(N.D. 'Ca. 1985).
Moreover, to protect this due process right, it is clear that a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Ran i
- v. Chandler, 569 T.2d 556, 560 (10th Cir. 1978); gebb v. McGhie 1
Land Title Co.,
549 T.2d 1358, 1361 (10th Cir. 1977); 28 U.S.C.
l l
l
$455(a).
This is an objective standard which means that a judge 1
l must disqualify himself if a reasonable person, knowing all the circumstances, would be led to the conclusion that the judge's i
impartiality might reasonably be questioned.
Fredonia J
f j
Broadcastina Corocration. Inc. v. RCA Corocration, 569 F.2d 251, f
257 (5th Cir. 1988).
The written conclusions of Judges Gleason and Kline set l
i 4
forth in LBP-88-24 establish that they are biased against the I
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Governments and that a reasonable person would necessarily draw l
e j
the conclusion that they cannot be fair and impartial in ruling f
on LILCO's Request.
Judges Gleason and Kline made their views l
toward the Governments abundantly clear in LBP-88-24:
they believe that the Governments have malevolently tried to subvert the NRC processes.
The nature and depth of this opinion is plain, for LBP-88-22 is replete with invective directed toward i
j the Governments.
For example, Judges Gleason and Kline wrote j
1 that; i
a
(the Governments' actions) were willful, taken in bad faith, and are prejudicial to LILCO and the integrity of the Commission's adjudicatory process.
(LBP-88-24 at 130);
(the Governments' actions) reveal a sustained and willful strategy of disobedience and disrespect for the Commission's adjudicatory process (idi, at 129);
the (Governments'] strategy of non-cooperation and obstruction was deeply entwined with legitimate practice."
(idi).
(the Governments) have actively sought to frustrate the Commission's efforts to arrive at an informed judgment" (idt at 112);
(the Governments' actions] represent a pattern of substantial and continual actions to frustrate federal review (id2 at 111);
. procedural mechanisms have been consistently utilized (by the Governments) in delaying the Board and Commission in carrying out its licensing responsibilities (idi at 110); and (the Governments have) an overall plan to thwart (the NRC's] inquiry and subvert the Commission's process for political ends.
(idi at 102).
Indeed, Judges Gleason and Kline believe "there are no redeeming features" in any of the Governments' conduct (idi at 114, n.38),
and that the "only appropriate penalty" (idt at 130) is for the Governments to be dismissed from all Shoreham proceedings.
Any reasonable person would necessarily question the i
impartiality of Judges Gleason and Kline with respect to the issues presented by LILCO's Request.
As to LILCO's request thst the Governments be dismissed from the OL-6 proceeding, it is clear that having once purported to dismiss the Governments from 6-
all proceedings for allegedly willful and bad faith conduct, Judges Gleason and Kline cannot now fairly or objectively resolve that issue even in the contoxt of a se.parate proceeding.
- Indeed, for Judges Gleason and Klino to review this issue would violate the Appeal Board's ruling that with regard to a dismissal, "a
party has a right to be judged independently and fairly by each board before which it appears."
ALAB-902 at 11.
As to the merits of LILCO's request for 25% power authorization, the Governments intend to challenge the request by submitting contentions, evidence, and briefs as necessary and appropriate.
However, Judges Gleason and Kline have already "found" that the Governments cannot be trusted and that virtually everything the Governments do, even if it is perfectly legitimate, is designed to further an "overall plan to thwart" the NRC and "to subvert the Commission's process for political i
j ends."
- Sgg, e.a.,
LDP-88-24 at 111.
These findings show that Judges Gleason and Kline do not take at face value what the Governments say or do.
Instead, they see behind each move an ulterior purpose, a will to subvert, and bad faith.
It is i
obvious that a fair evaluation of anything the Governments submit on the merits cannot reasonably be expected from judges with these predispositions.
~7-l I
1
Accordingly, pursuant to Section 2.704, the Governments hereby move Judges Gleason and Kline to disqualify themselves from the OL-6 proceeding.1/
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III. LILCO'S 25% POWER REQUEST MUST BE DENIED ON THE MERITS LILCO argues that it should prevail on the merits of its Request because (i) the Governments must be dismissed from the proceeding, (ii) no emergency planning issues are pending, and (iii) the Staff's recent Technical Review shows that any unresolved issues relating to the 1988 Exercise of LILCO's Plan are not significant at 25% power.
LILCO's arguments lack factual support, seek to avoid established procedures, ignore Licensing and Appeal Board Orders, and constitute a transparent effort to obtain a 25% power license without the proper scrutiny of this l
Board, the Staff and the Governments.
Indeed, the clear goal of LILCO's Request is to circumvent the OL-5 Board's finding that LILCO's Plan is fundamentally flawed (att LBP-88-2, 27 NRC 85 (1988)) and the probability that the 1988 Exercise established that those fundamental flaws remain uncorrected.1/
LILCO's 1/
To fully comply with procedural requitements, the l
Governments have also submitted a separate motion.
In addition, Section 2.704 provides, "The motion shall be supported by affidavits setting forth the alleged grounds for disqualification."
Secause the grounds for disqualification are Judge Gleason and Kline's own statements in LBP-88-24, the Governments attach to this pleading the Affidavit of Karla J.
Letsche which reflects reliance on the language of LBP-88-24.
1/
LILCO's Request is so brazen that LILCO boldly admits that the Request constitutes an effort to skirt the Appendix E exercise requirement and the Governments' right to contest (footnote continued) l l
Request must therefore be rejected on the merits.
A.
The Governments Should Not Be Dismissed From The OL-6 Docket In its frenzy to obtain a license regardless of procedural l
requirements or safety consequences, LILCO seeks to have the Governments dismissed from this proceeding because they micht act improperly in the future.
LILCO's speculative argument is stated as follows:
l Obviously, Intervenors, if civen the chance, l
intend to hold the 25% oower chase of this oroceedino in thrall while they purport to complete their technical review.
Such calculated foot dragging was found to be sanctionable by the OL-3 Board, it cannot be l
tolerated in the OL-6 subdocket.
Intervenors should be dismissed.
j 1
LILCO Request, at 10 (emphasis added).
This assertion and the l
scurrilous rhetoric which accompany it are merely a crude polemic j
designed to shift focus away from the important safety issues l
l involved in LILCO's 25% Power Request.i/
The reality is that l
l LILCO's argument seeks the ultimate sanction for behavior which l
l l
l (footnote continued from previous page) exercise results, as established by Union of Concerned Scientists
- v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 469 U.S.
1132 (1985).
In particular, LILCO states "the renewed prospect j
of extended litigation of the 1988 Exercise, however, redirects attention to LILCO's 25% power request."
LILCO Request at 6.
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1/
LILCO's Request is filled with overblown rhetoric.
For example, LILCO refers to "Intervenors' congenital bad faith," and states that "it must be taken for granted now that if Intervenors are allowed to continue to participate they will again resort to their same obstructionist, delay-oriented tactics.
Simply put, Intervenots are recidivists LILCO Request at 9.
Such statements are not only intemperate, they are completely lacking in factual foundation.
1 l
1 has not even hacoened.
LILCO's argument also ignores the facts, the orders of this Board and proper procedures.
l Turning first to the facts, the record in the 25% power l
l proceedings establishes that the Governments have, without l
exception, acted as a responsible litigants, met every filing deadline, and advanced well-founded arguments.1/
Indeed, if the 25% power record reveals irresponsible litigation strategies, it is LILCO's continued efforts to have its 25% power request approved in disregard of due process, safety and reasoned judgment.
Thus, for example, in obvious derogation of the rules, LILCO initially sought a 25% power license by using 10 C.F.R.
S 50.47(c) as a basis for applying to the Commission for authorization to operate at 25% power.
Egg LILCO's Request for Authorization to Increase Power to 25% and Motion for Expedited Commission Consideration (April 14, 1987).
The Commission summarily rejected LILCO's approach, noting that LILCO _"has gifered no exolanation of how the Commission may lawfully circumvent its usual rules for decisions."
CLI-87-04 at 2 (emphasis supplied).
LILCO's Request was clearly not well f
1/
In fact, the Governments have worked to protect the integrity of the NRC process in this matter.
For example, as discussed in the text, LILCO's original Req' Jest for Authorization to Increase Power to 25% and a Request for Expedited Commission Consideration were presented to the Commission.
This procedure was clearly improper, and the Governments opposed the request.
Egg Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO's Request for Expedited Commission Consideration (April 27, 1987).
The Commission acreed with the Governments and rejected LILCO's request.
1 l l l
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founded in the law and shows a contempt for the orderly l
l procedures of adjudication.
j i
j Similarly, in refiling its request with the Licensing Board, LILCO continued to disregard the regulations and their I
1 requirements.
As the Margulies Board stated:
i I
Although 10 C.F.R. 50.47(c) on its face has nothing to do with applying for a license and 2
}
authorizing operations at less than full power, LILCO filed its 25% power motion under this section and addressed its requirements.
l It appears to the Board, that Applicant in attempting to make a case for a 25% power i
authorization ianored and did not address maior i
1 recuirements of 10 C.P.R.
50.57fe), the section f
i of the reculations that specifically concerns i
1 amplications authorizina coerations short of l
1 full oower operation.
Anolicant did not modify l
1 the motion to address the reauirements of l
~
50.57(c) even after the Commission advised that the motion could be refiled under that section i
if it continued to want the license.
[
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i
]
Memorandum to the Parties (Oct. 6, 1987) at 4-5.
)
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Turning next to LILCO's disregard of this Board's orders, l
1 l
LILCO purports to castigate the Governments for needing time to j
r i
review the Staff's October 6, 1988, "Technical Review of a i
1
]
Request from Long Island Lighting Company for Authorization to i
J Operate the Shoreham Nuclear Power Station at a Power Level Up to I
i j
Twenty-Five Percent of Full Rated Power (with Attachments)"
l (hereafter, "Technical Review"), but ignores this Board's clear statements that the Governments are entitled to a reasonable j
period of time to review and respond to the Staff's Technical
)
1
l 1
l Review.
In particular, this Board held that the technical issues l
raised by LILCO's Request cannot be addressed "without some l
opportunity for the Governments to review both LILCO's original request and the Staff's analysis thereof."8/
The Board also held that statements concerning the relevancy of pending contentions "would necessarily await the publication of the Staff Safety 1
i Evaluation and a reasonable ceriod for review by the Governments' exoerts."9/
Since the Governments have now received the Staff's Technical Review, the Governments' experts are reviewing it.
Within a reasonable time, the Governments will be in a position to formulate contentions and discovery on the numerous issues raised by LILCO's PRA and technical analyses, and the Staff's Technical Review.
Not only is LILCO's request for the dismissal sanction factually groundless and contrary to Board orders, it is also procedurally flawed.
ALAB-902 clearly states that with regard to a dismissal sanction, a party has :he "right to be judged independently and fairly by each board before which it appears."
ALAB-902, at 11.
This language implies that dismissal can occur only after there is adequate notice and a hearing on the record, and such a requirement is in full accord with federal law.
8/
Memorandum and Order (in re: LILCO Request for Authorization to Operate at 25% of Full Power) (January 7, 1988) (hereafter "January 7 Order") at 11 (emphasis supplied).
1 9/
Idi (emphasis supplied).
Indeed, the Boards' allowance of a reasonable time to review the Staff SER is only fair since it took LILCO two years to prepare the 25% power PRA and the Staff needed approximately nine months to complete its SER. l l
l l
l Roadway Exoress, Inc.
v.
Pioer, 447 U.S. 752, 767 (1982)
(Sanctions.
. should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.")
Yet instead of making a proper motion supported by facts, LILCO has submitted a one sentence Request to Dismiss based on "self-evident" reasons that are nothing more than rank speculation about what might happen in the future, and have no factual foundation in the Governments' actual conduct in the OL-6 proceeding.
Such speculation simply cannot form the basis for a dismissal uanction.
I l
The sanction of dismissal can properly be imposed only if l
the Board can make a finding of bad faith supported by detailed factual findings.
Falaco Enoineerino co. v. Costle, 843 F.2d 376, 381 (9th Cir. 1988); Fatton v.
Aeroiet Ordinance Co., 765 i
F.2d 604, 607-608 (6th Cir. 1985).
Moreover, due process clearly requires that a dismissal be based on misconduct which relates to that proceeding.
Wyle v. R.T.
Reynolds Industries. Inc., 709 T.2d 585, 591 (9th Cir. 1983) ("sanction must be specifically I
related to the particular ' claim' which was at issue in the order to provide discovery.")
If LILCO wants to pursue a motion to I
have the Government dismissed from the OL-6 proceeding, it must j
submit a factually supported motion, not a baseless diatribe.
Its one sentence "request" must be summarily denied.
13 -
B.
Pending Matters Prevent the (tnsideration of a 25% Power License.
LILCO has asserted that there are no contentions which prevent the issuance of a 25% power license.
This assertion is wrong.
As is established below, numerous pending issues provent the issuance of a license.
L 1.
The OL-5 Board rindinas of rundamental riaws I
L t
The record is clear that the OL-5 Board found several t
fundamental flaws in the LILCO Plan.lE/
For example, the OL-5 Board unequivocally stated:
(W]e have concluded that the weaknesses in the public information program demonstrate a fundamental flaw in LERO's cacability to l
communicate emeroency information and l
orotective action recommendations to the
}
public.
i We conclude than the training of LERO personnel in responding to unanticipated and unrehearsed events, in communicating i
l information about such events, in analyzing the kind of equipment needed to respond to serious roadway accidents, and in the development of alternative actions when actions called for by the Plan do not or will not work effectively, has been inadequate.
We have already found that the communication problem constitutes _a fundamental flaw in the Plans this flaw resulted in part from the lE/
The OL-5 Board defined a "fundamental flaw" as a "condition in which there is a lack of reasonable assurance that the public can be protected" (which it described as "a situation which the Commission is chartered to prevent").
Leno Island Lichting i
Cercany (Shoreham Nuclear Power Station. Unit 1), LBP-88-2, 27 J
NRC 85, 92 (1988).
1 1
I
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i l
long chain of communication and in part from inadequate training.
We believe that LILCO must significantly expand and improve its training program in communications before there can be reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham emergency.
27 NRC at 173-74, n. 48; 180 (emphasis supplied).
Moreover, the OL-5 Board concluded as follows:
Because the consequences of poor communication during the Exercise resulted in a finding of a Deficiency by FEMA and a Fundamental Flaw by us, and because we agree with Suffolk's witnesses that timely and accurate communications provide the backbone of a successful omergency response, we l
conclude that LILCO's trainino orocram is fundamentally flawed in the area of communications.
1 Idx at 196 (emphasis supplied).
i i
The flaws in the LILCO plan and in LILCO's ability to implement it, as found by the OL-5 Board, are fatal to LILCO's t
25% power application as a matter of logic and law, and according to this Board's own prior orders.
Thus, this Board explicitly i
recognized that the 25% power license sought by LILCO "can issue l
l only it its issuance, the operation of the facility, and the l
activities authorized will all give reasonable assurance of the l
protection of health and safety and compliance with the regulations."
January 7 Order at 9 (emphasis supplied).
The OL-5 Board's finding that LILCO's Plan is fundamentally flawed it l
the law of this case.
That finding precludes the reasonable 15 -
.l-assurance finding which this Board identified as a necessary predicate for 25% power authorization.
Thus, according to this Board's ovn January 7 Order, LILCO's Request must be denied.
This conclusion is compelled for an additional reason.
LILCO's Request is premised on two propositions:
(1) it has an adequate plan and an effective organization to carry it out; and (2) 25% power operation involves reduced risk.11/
Clearly, the extant OL-5 Board decision, finding LILCO's Plan and the capabilities of its LERO organization fundamentally flawed, require the rejection of LILCO's first premise, and thus the denial of its Request on the merits.
The Governments have thoroughly briefed this issue on at least two occasions, yet LILCO cimply ignores the facts.
Instead, LILCO har, attempted to skirt the implications of the controlling fundamental flaw findings by referring to the results of the 1988 Exercise and its 25% PRA.
As is described below, neither the 1988 Exercise nor 11/
Sag e.a.,
LILCO's Reply Brief on the 25% Power Questions, which states:
In LILCO's original motion for approval to operate at 25%, two actions are described which "taken together with the present licensing status of Shoreham, permit the requisite finding to be made.
authorizing operation at power levels up to 25%."
These "compensating actions" are the existence of a LILCO-soonsored emeraency olan and the ooeration of the olant at 251 cower.
LIL10's motion clearly proposes these actions be "taken cocether" to demonstrate the necessary compensating action.
LILCO's Reply Brief on 25% Power Questions (Nov. 16, 1987) at 11 (ellipses in original; emphasis supplied); agg also LILCO Motion for Expedited Consideration (April 14, 1987 at 2.
the 25% PRA provide a basis for ignoring the fundamental flaw findings of the OL-5 Board.
2.
The 1988 Exercise Contentions The 1988 Exercise revealed that the fundamental flaws l
identified by the OL-5 Board have not been corrected.
Accordingly, the Governments have filed extensive contentions before the OL-5 Board challenging the results of the 1988 Exercise.
Among other things, the submitted contentions state that the 1988 Exercise demonstrates fundamental flaws in LILCO's training program; LILCO's ability to communicate with the public and within LERO; LILCO's ability to formulate protective action
-l r ecomme nda.- ons in accordance with the Plan provisions; and LILCO's ability to implement its protective action
)
recommendations.
Furthermore, the Governments have submitted contentions which demonstrate that the scope of the 1988 Exercise failed to comply with the requirements of 10 C.F.R. Part 50 J
Appendix E.
According to ALAB-902, this Board must consider these contentions to be pending.
The Appeal Board clearly held that "the cocortunitv to orocose liticable contentions concerning the 1988 emergency exercise is necessarily equivalont to the right to litigate an already admitted contention." ALAB-902 at 4
4 3 !
12 13, n.13 (emphasis added).
Thus, LILCO's argument that there are no pending contentions is simply wrong.12/
3.
Technical Contentions Similarly, the Governments have not yet been given the opportunity to contest the validity and relevance of L1LCO's technical analyses to its 25% power authorization request.
There can be no doubt, however, about their right to do so by submitting contentions in the OL-6 proceeding.ll/
LILCO relies on its technical analysis as one of only two bases for its Request.
Due process requires that the Governments be afforded the opportunity to challenge that analysis through contentions.
Moreover, 10 C.F.R.
S 50.57(c) itself provides that:
Action on (a motion to operate at low power] shall be taken by the presiding officer with due regard to the rights of the parties to the proceeding, includina the richt of any Darty to be heard to the extent that his 11/ The OL-6 Board ordered Judge Hetrick to decide whether pending contentions were "relevant to LILCO's proposed operation at 25% full power and whether applicant's motion should be i
granted pursuant to the provisions of 10 C.F.R. 50.57(c)."
The Government 3 have thoroughly briefed the impact of the OL-5 Board fundamental flaw findings on LILCO's 25% Power Request.
Now that the new exercise contentions have been filed, Judge Hetrick must also consider how they are relevant to 25% power.
Under the Board's previous orders, Judge Hetrick's report should be the first step in reviewing issues, and LILCO has articulated no reason why this procedure shall not be followed.
13/ The Governments have not yet filed contentions on these issues because the Board stated that the Governments would have a reasonable time to review the Staff's Technical Review before addressing technical issues.
When the Board establishes a schedule for filing contentions, the Governments will be prepared to submit contentions in a timely fashion.
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contentions are relevant to the activity to be agthorized l
(emphasis added).
Clearly, under Section 50.57(c), the parties to this proceeding have the right to advance contentions relevant to the technical bases of LILCO's authorization request, once the necessary review of technical materials is complete.
There is no basis for LILCO's apparent belief that relevant contentions can be limited to only pending emergency planning contentions.
t Indeed, recognizing the clear import of the Section 50.57(c) language, the Staff proposed that the parties be able to advance contentions once the relevance of already pending contentions is resolved.
NRC Staff Response to Board Memorandum Requesting Parties Views on Questions Raised by LILCO's 25% Power Authorization Motion (November 6, 1987) at 6.
The Board then accepted the Staff's procedure, stating:
Furthermore, we agree with the Staff that the plain wording of 50.57(c) requires that we "(1) consider whether pending contentions in the proceeding are
.; (2) allow anZ oarty Elkh relevant to the request contentions thg occortunity to show that those contentions are so relevant; and (3) findings on the application of the 50.57(a) matters to the activity to l
be sought to be licensed with respect to the matters in controversy.
January 7 Order at 7 (emphasis supplied).
The Governments are entitled to pursue already pending relevant contentions, and new relevant contentions.
j t 1 e
the Governmenth 'havo' a right There can be no doubt that to file contentions, for the procedure was advocated:b'yfthe Staff, recognized by LILCO,li/ and adopted by the Boar'1 Accordingly, d
in addition to the emergency planning matters and.-the 1988 exercise contentions, on reasonable notice, the Governments are prepared to snbrait for litigation contentions showing that the risk of operation at 25% power is not several orders of magnitude less than the risk at 100% power.
In addition, the Governments are prepared to submit contentions on other technical issues relevant to LILCO's Request, such as:
1.
The scram failure probability used in LILCO's 25% power PRA is too optimistic.
2.
The values for frequency of loss of offsite power, power recovery rates and failure of the TDI diesel used in the 25% power PRA are too optimistic.
3.
The 25% power PRA made a number of questionable assumptions and parameter values for interfacing LOCAS.
)
4.
The seismic core melt frequency is overly optimistic because the seismic PRA analysis failed to consider a number of potentially important factors, including modeling of human errors under high stress during seismic sequences, soil / structure interactions, aftershocks and relay chatter.
5.
High pressure melt ejection and direct containment heating have not been correctly modeled in the PRA.
l 11/
LILCO recognized that if its technical analyses became the subject of this proceeding, the appropriate procedure would be for the Governments to file contentions on technical issues.
ing LILCO's Reply Brief on 25% Power Questions, Nov. 26, 1987 at 6-7.
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D.
LILCO Cannot Demonstrate that the Risk of Operation at 25% Power Involves a Risk Reduction of Severitl Orders of Macnitude.
In a complete about face from LILCO's original request for 25% power operation authorization, which argued that a 25% power license should issue because there was reduced risk and an adeauate plan, LILCO now argues that the risk at 25% power is sufficiently reduced, so that the fundamental flaws found by the OL-5 Board are not material.
This retreat is a clear recognition that the LILCO Plan has been found to be flawed, and therefore cannot support issuance of a 25% power license.
Nevertheless, LILCO now cites the Staff's Technical Review as support for this new proposition.
The reliance on the Staff Revied is just plain wrong.
First, the Staff explicitly dt.ew H2 conclusions as to whether the reduced risk at 25% power makes emergency planning i
issues immaterial.
The NRC Staff's October 1988 Technical Review addrewaed only the question of the validity of LILCO's claim that risks and consequences are reduced at 25% power.
It did a21 address the safety consequences of that reduction.
The Staff explicitly stated as follows:
The staff's technical review is an attempt to assess the validity of LILCO's claim about this reduction of risks and consequences from the analysis that was submitted with the Request.
The staff's evaluation does not examine the unresolved EP issues and whether the safety merits associated with the 25 oercent oower restriction would constitute adecuate comoensatina measures.
Instead, the emphasis of this technical review is on comparisons between operation at 25 percent power and at full power and the effects of the power reduction on various aspects of postulated accidents.ll/
The Staff's limited Technical Review makes no safety conclusions, falls to addreas pending emergency planning issues, and is plainly not dispositive of the issues raised by LILCO's Request.
In addition, in its previous orders, the Licensing Board has focused the technical issues presented in LILCO's 25% power Request by stating that the issue is whether the risk at 25%
power is "several orders of magnitude less than the risk at full power."
January 7 Order at 6.
Based solely on the Staff's Technical Review, however, it is clear that LILCO cannot and does not meet this standard; the Staff makes an such findina.
- Indeed, the inference to be drawn from the Staff's Technical Review is that risk at 25% power is n21 several orders of magnitude less than at full power.
In particular:
1)
In the detailed reports underlining the Staff's review of LILCO's PRA, the Staff acknowledges "the absolute distance at which maior reductions occur in the orobability of exceedina a carticular dose are dependent on modelling and input assump gns and are an area of remainina uncertainty.
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2)
In addition, the staff acknowledges that while the probability of exceeding a five tem dose (the upper bound PEPA PAG dose for whole body exposure) is also reduced at 251 power "slanificant reduction does not cenerally occur within the 10 mile EPZ."
142 (emphasis supplied) 11/
Staff's Technical Review at 1.
16/
Staff's Technical Review (Enclosure 2 at 4G).
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4 3)
The Staff also concluded that LILCO's claim that offsite radiological consequence are reduced at 25%
power compared with 100% is due to two factors:
first a reduction of an approximate factor of four in the fission product inventory available for release in any postulated accident at 25% power; second, a significant increase in the time to release because of the reduced heating rate ag 25%
power; 1212, the reduced decay heat level."ll/
Thus, as is set forth in the attached Affidavit of Steven C. Sholly,18/ it is apparent from the Staff's Technical Review that the reduced risk at 25% power is not several orders of magnitude less than the risk at full power.
In particular, as is illustrated above, the probability of exceeding a five rem dose is not significantly reduced within the 10 mile EPZ.
Furthermore, the reduced risk from fission product inventory is reduced only by a factor of four, and since an order of magnitude is a factor of 10, the reduced risk from reduced fission product inventory does not support a "several orders of magnitude" reduction.
IV.
CONCLUSION I
For the reasons set forth above, LILCO's Request should be denied.
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Staff's Technical Review at 4.
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A notarized version of Mr. Sholly's Affidavit will be submitted as soon as possible.
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Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788
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Derbert H. Brown Karla J. Letsche David T. Case KIRKPATRICK & LOCKHART 1800 M Street, " W.
South Lobby - 9th Floor Washington, D.C.
20036-5891
~1 Attorneys for Suffolk County 1444 FKbian G. Pald'mino 1
Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 l
Attorney for Mario M. Cuomo, Govern r of the State of New York i
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Stephen /V. Latham
~~J i
j Twomey,%atham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of l
Southampton l
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UNITED STATES OF. AMERICA liUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board i
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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-6
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(25% Power)
(Shoreham Nuclear Power
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Station, Unit 1)
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4
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AFFIDAVIT OF STEVEN C.
SHOLLY j
Steven C. Sholly, being under oath, deposes and says as j
follows:
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I am an Associate Consultant with MHB Technical i
Associates.
I have more than five years experience in the per-l 4
I 1
formance and review of probabilistic analysis of nuclear power i
plant safety issues, including the review of PRA studies and the j
i application of PRA results to the assessment of generic issues
{
t and emergency planning practices and procedures.
I have served
- j as a member of the peer review group on regulatory applications of PRAs.(NUREG 1050) and as a member of the Workshop on Contain-k ment Performance Objectives (as part of NRC's Safety Goal j
f Program).
I have testified in.NRC proceedings on the Indian j
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Point and Catawba plants concerning PRAs and their application to i
emergency planning.
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2.
I have reviewed the October 6, 1988 NRC Staff Technical Review of LILCO's Request to Operate Shoreham Nuclear Power Station at 25% Power ("Technical Review") and its supporting documents.
I have also reviewed'LILCO's April 17, 1987 Request for Authorization to Increase Power to 25%; LILCO's 25% Power Probabilistic Risk Assessment, and the OL-6 Licensing Board Order of January 7, 1988.
3.
The OL-6 Board Order of January 7 indicates that the appropriate standard to review LILCO's 25% power request is whether the risk at 25% power is "several orders of magnitude l
less" than the risk at full power.
Now that the Staff Technical Review is available, it is clear that LILCO cannot meet this standard.
In particular, the Staff makes no such finding, and the inference to be drawn from the Technical Review is that risk i
at 25% power is a21 several orders of magnitude less than the risk at full power.
In particular:
A)
The Staff could find no basis for concluding with confidence that core melt frequency is reduced at 25% power.1/
Accordingly, any risk reduction at 25% power must come from source term magnitude (including fission product 'nventory), and release timing characteristics.
1/
Technical Review (Enclosure 2) at 7.
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B)
In the detailed reports underlining the Technical Review, the Staff acknowledges "the absolute distance at which major reductions occur in the probability of exceeding a particular dose are dependent on the modeling and input assumptions and are an area of remaining uncertainty."2/
In addition, the Staff acknowledges that while the probability of exceeding a five rem dose (the upper bound 2PA PAG dose for whole body exposure) is also reduced at 25% power "sionificant reduction does n21 cenerally occur within the 10 mile EPZ."
1 3)
The Staff also concluded that LILCO's claim that offsite radiological consequences are reduced at 25% power compared with 100%, "is due to two factors:
first, a reduction of an approximate factor of four in the fission product inventory available for release in any postulated accident
)
at 25% power; second, a significant increase in 4
the time to release because of the reduced j
heating rate at 25% powers i.e., the reduced decay heat level."l/
1 It is thus apparent frca the Staff Technical Review that the i
reduced risk at 25% power is not several orders of magnitude less
?
2/
Technical Review (Enclosure 2) at 46.
1/
Technical Review at 4.
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10/31/88 15:34 0408 266 7149 MHB TECHNICAL
~~~ CtIRKPATRICK 2 002 than the risk at full power.
This is in accord with my preliminary review of the LILCo 25% power PRA.
In particular, as is illustrated above, the probability of exceeding a one or five tem dose (La., the EPA whole body FAG) is not significantly reduced within the 10 mile EPI.
Moreover, a factor of four reduction in fission product inventory is not even one order of magnitude, since an order of magnitude is a factor of 10.
stephen c. shou y g -
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