ML20205R834

Requests Addl Info Re Lilco Request for Exemption from 10CFR50,App E.Expresses Dissatisfaction at NRC Ignoring Author Ltrs While Replying to Util Ltrs on Same Subj

ML20205R834
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/02/1987
From:	Brown H KIRKPATRICK & LOCKHART
To:	Butler W Office of Nuclear Reactor Regulation
References
CON-#287-3011 OL, NUDOCS 8704060458
Download: ML20205R834 (2)

Text

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KIRKPATRICK & LOCKHART SOUTH LOBBY . 7TH Floor EXCHANGEPLACE-1800 M STREET, N.W.

WASHINoToN, D.C. 20055891 gla 227m00 1428 BluCKELL AVENt2 MIAMI. PL 3313I TElf. PHONE GOD 77&9000 0 05) 374 4112 TELEX 440209 KL N: UI 1500 OLATA BUILDENO TELECOPIER (202) 7N9100 PffTSBURGH, PA15222-5379 HERBERT H. BROWN "W 355*580 aozmSws April 2, 1987 BY HAND Walter R. Butler, Director BWR Project Directorate No. 4 Division of BWR Licensing  ;

United States Nuclear Regulatory Commission '

Washington, D.C. 20555 RE: Docket No. 50-322-OL, LILCO Request for Exemption from 10 CFR Part 50, Appendix E

Dear Mr. Butler:

We are writing on behalf of our client, Suffolk County, in response to your letter dated March 6, 1987, to Mr. Donald P.

Irwin, counsel to LILCO. Your letter states, "Your request

[LILCO's request for an exemption from 10 CFR Part 50, Appendix E, Section IV.F.1] will be further considered when the Shoreham licensing pronass progresses to the point when such consideration becomes more timely and you will then be given an opportunity to supplement your application."

Please advise us promptly of the following:

1. Does your March 6 letter mean that the NRC Staff claims that the Staff -- rather than the ASLB conducting the Shoreham OL-5 proceeding -- has jurisdiction to consider LILCO's exemption request?

2. If so, provide the legal bssis for the Staff's position?

3. Reply substantively to our letters to Harold Denton of the Staff, dated February 6, 1987, and March 3, 1987. Copies of 8704060458 870402 PDR ADOCK 05000322 F PDR Ig

KIRKPATRICK & LOCKHART Walter R. Butler, Director Page 2 April 2, 19e7 these letters are enclosed. There is no excuse for the Staff ignoring our letters while replying to LILCO's letters on the same subject.

Very truly yours, Herbert H. Brown cc: Service List 1

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KIRKPATRICK & LOCKHART south LOBBY - 71H floor ExcHANot PLACE 1800 M S11tEET, N.W. 53 STATE smsT WASHINGTON, D.C. 200E5891 22 1428 BRICKELL AVENUE MIAML PL 33131 TE!IPHONE (202) 77&t000 005) 3744I12 TEtzx 02o, rt oc ts in custR eviuxwo TE11 COPIER (202) 7759100 P!TT38LRCH. PA 15222 5379 HERBERT H. BROWN "3D 3554*

c 23 77Ses February 6, 1987 Harold R. Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docket No. 50-322-OL LILCO Request for Exemption from 10 C.F.R. Part 50, Appendix E

Dear Mr. Denton:

This is in reference to the filing made by the Long Island-Lighting Company ("LILCO") with your office entitled " Licensee's Request for Exemption From 10 C.F.R. Part 50, Appendix E," dated January 22, 1987 (hereafter, the " Exemption Request"). On behalf of Suffolk County, and with the authorization of the State of New York and the Town of Southampton (collectively, the " Govern-ments"), we are writing to inform you that your office lacks jurisdiction to consider LILCO's Exemption Request, and that the filing accordingly must be returned to LILCO with instructions that it be filed properly either with the Commission or the Shoreham Licensing Board presiding over the post-exercise litiga-tion.

As you know, the Shoreham operating license proceeding is contested. One of the pending issues in the litigation is whether the results of the LILCO Exercise conducted on February 13, 1986, provide a sufficient basis for issuing. a license authorizing operation above 5% power. The Licensing Board has admitted for litigation contentions on issues arising out of the Exercise. Each of those contentions alleges that the Exercise revealed fundamental flaws in LILCO's proposed off-site emergency plan and the lack of compliance with the NRC's emer-gency planning regulations.

LILCO's Exemption Request relates directly to the issues in the contested proceeding, including contentions which address whether the Exercise satisfies Part 50, Appendix E requirements U(db D

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KIRKPATRICK & LOCKHART Harold R. Denton February 6, 1987 Page 2 for a full participation exercise. For example, in its Exemption Request, LILCO asserts that the February 13, 1986 Exercise can serve as the basis for licensing operation above 5% power and that LILCO should be relieved from having to satisfy the Appendix E requirement that a full participation exercise occur within 12 months of the grant of a full power license. LILCO's position that the scope of the Exercise satisfied the full participation exercise requirements of Appendix E and that the results of the Exercise can provide the basis for the findings necessary under 10 C.F.R. 50.47 is not only contested, but is directly at issue in the licensing proceeding. See Prehearing Conference Order in the Shoreham OL-5 Proceeding (Ruling on Contentions and Estab-lishing Discovery Schedule), October 3, 1986.

It is fundamental in NRC practice that issues which are contested or which by regulation or statute require a decision by the Commission or a licensing board may be decided only by the Commission or a board. The NRC Staff has no authority to decide such issues. See, e.g., Commonwealth Edison, Co. (Byron Nuclear Power Station, Units 1 and 2), LEP-84-2, 19 NRC 36 (1984); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313 (1978); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),

ALAB-298, 2 NRC 730, 733 (1975); Consolidated Edison Co. of New York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947 (1974);

Washington Public Power Supply System (Hanford No. 2 Nuclear Power Plant), ALAB-113, 6 AEC 251 (1973); Vermont Yankee Power Corp. (Vermont Yankee Station), ALAB-12 4, 6 AEC 358 (1973).

LILCO's Exemption Request deals directly and fundamentally with contested issues already pending in the Shoreham OL-5 proceeding.

Therefore, only the Commission or the Shoreham Licensing Board may consider the Request.

In light of LILCO's misfiling of the Exemption Request with your office, it is premature to address the merits of the Request or for the Governments to place into dispute material issues of fact. Should LILCO properly file an Exemption Request, the Governments will respond in accordance with their responsibili-ties under the regulations so as to obtain a hearing and a denial l of the Request. Nevertheless, for your information, we note that l LILCO cannot seriously argue that it is entit]2d te an exemption l in the present circumstances, where an exemption would have only l the effect of making the exercise results further outdated, stale, and of no pertinence to the reasonable assurance standard; where FEMA found five deficiencies and concluded in any event

y KIRKPATRICK & LOCKHART Harold R. Denton February 6, 1987 page 3 that it cannot make a reasonable assurance finding; and where FEMA's RAC Chairman for Shoreham stated under oath that a remed-ial exercise is necessary.

Finally, the Governments point out that the format and content of LILCO's filing are grossly deficient and subject to summary dismissal in their present form. Having participated in the extensive 1984 proceedings involving LILCO's request for an exemption from GDC-17, LILCO, perhaps more than any other util-ity, should know that exemption requests require serious and meaningful documentation. LILCO's filing is superficial and contrived; it was not accompanied even by supporting affidavits or corroborating data. In the event LILCO chooses to refile, the Governments will insist that LILCO fully satisfy its obligations and burden of proof under the NRC's regulations.

Should you disagree with the Governments' position that your office lacks authority to consider LILCO's request, the Govern-ments would appreciate your prompt advice and an opportunity for an early meeting at which to discuss this important matter.

Sincerely yours, Herbert H. Brown cc: Service List

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TEum c0D M&ol00 FITT38UICH, PA 19222.jnt HERBERT H. BROWN (4:23 sss4 top ac2 nSes March 3, 1987 BY HAND Harold R. Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docket No. 50-322-OL-5 (EP Exercise)

Dear Mr. Denton:

On behalf of Suffolk County, New York State, and the Town of Southampton (" Governments"), this is in response to the letter from LILCO's counsel to you, dated February 19, 1987, in which LILCO replied to the Governments' letter of February 6. (A copy of the Governments' February 6 letter is attached hereto for your convenience.)

LILCO's February 19 letter seeks to rationalize its plea that your of fice grant LILCO a Section 50.12 exemption from the one-year exercise requirement of 10 CFR Part 50, Appendix E.

LILCO cites no legal basis for your office to consider LILCO's exemption request. There is no legal basis, because LILCO's filing with your office was only a gambit to circumvent regular procedures (a filing with the Commission or the OL-5 Licensing Board) and thus prevent the Governments from having the opportun-ity to contest the exemption request in an adjudicatory hearing.

Accordingly, as stated in the Governments' letter of February 6, the only proper course is for your office to return the exemption request to LILCO with instructions that, if LILCO wishes to pursue an exemption, the request must be properly filed with the Commission or the Shoreham OL-5 Licensing Board.

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KIRKPATRICK 66 LOCKHART Harold R. Denton March 3, 1987 Page 2 '

The following responds to each of the four numbered para-graphs in LILCO's letter of February 19.1

1. For reasons stated in the Governments' February 6 letter, your office does not have jurisdiction .to make the factual findings required by LILCO's Section 50.12 exemption i request. The Governments hereby confirm that they will contest any LILCO request for an exemption from the one-year rule. The-Governments are thus entitled to a hearing before the Licensing Board. At such a hearing, LILCO would have the burden of proving  ;

that it is entitled to an exemption, and the Governments would have the right to dispute material facts alleged by LILCO and present their own affirmative case in opposition to LILCO's request.

LILCO's suggestion that the timeliness of the exercise is an uncontested issue within the Staf f's jurisdiction cannot be taken as a serious argument. First, it obviously was impossible for the Governments to have proferred such a " timeliness" contention on August 1, 1986, when the other exercise contentions were filed, since any such contention would have had no factual basis and would have been premature.

1 The Governments first must respond to the unfounded allegation on page 1 of LILCO's letter that it is the Governments' pursuit of litigation over the February 13, 1986, exercise which has precluded a decision on the merits of the exercise within the time period referenced in Appendix E. ,

Contrary to LILCO, even absent the Governments' challenge to the exercise, the Commission could not have made a licensing decision favorable to LILCO by February 13, 1987. Folicwing the February 1986 exercise, FEMA identified five " deficiencies" in LILCO's proposed plan (the Governments believe the actual number is much greater), which constitute " demonstrated and observed inadequacies that would cause a finding that off-site emergency preparedness was not adequate to provide reasonable aasurance that appropriate protective measures can be taken to~ protect ~the health and safety of the public living in the vicinity of a l nuclear power facility in the event of a radiological emergency." l FEMA Post-Exercise Assessment, April 17, 1986, at 8. Also, 1 FEMA's RAC Chairman stated unequivocally that a remedial exercise is required to address these deficiencies plus others identified subsequently by FEMA's. Regional Assistance Committee. No such exercise has occurred or been scheduled. Thus, regardless of the exercise litigation pursued by the Governments -- which, in any event, the Governments' have a statutory right to pursue --

LILCO's own failings at the exercise constitute independent reasons that LILCO could never have relitd upon the February 1986 exercise for licensing purposes.

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KIRKPATRICK & LOCKHART Harold R. Denton March 3,1987 Page 3  !

Second, even without the formality of a contention, the timeliness issue clearly is a matter within the jurisdiction of l the Frye Licensing Board which was directed in CLI-86-11 to-  !

determine whether. the February 1986 exercise can support the l licensing of Shoreham. Just as the Frye Board's jurisdiction l extends to matters related to the scope of.the Shoreham exercise (see Contentions EX 15 and 16), the Board necessarily also has jurisdiction to assess whether th AppendixEexerciserequirements.gexercisemeetstheother LILCO, therefore, was required to file its exemption request with the Frye Board rather i than the Staff. t Finally, the Governments have a right to reply to LILCO's '

exemption request and to contest any allegations of material fact i alleged by LILCO. Obviously, the only time for the Governments j

to have exercised this right was after LILCO's exemption request  ;

came into existence. LILCO's argument that the Governments should have had the prescience to reply to something not yet in existence is on its face a laughing matter. '

2. LILCO's reference to the Perry case is of no conse-quence. In Perry there were no papers filed in opposition to the exemption request let alone circumstances comparable with those present here, where the Governments are contesting in ongoing litigation many serious issues arising from the exercise, including whether that exercise meets the regulatory requirements of Appendix E. Further, in Perry there had undisputably been one i full participation exercise as well as a second exercise which '

1 the NRC believed to have been a full participation exercise but {

which FEMA found to have been a " partial" participation exercise.  !

In neither Perry exercise had FEMA identified any deficiencies af fecting the public health and safety. Indeed, in Perry FEMA had issued a " reasonable assurance" finding.

i In contrast, following the February 13 Shoreham exercise, FEMA identified five deficiencies and made na reasonable assur-ance finding. And, unlike the unopposed Perry situation, here l the Governments will and do dispute the material facts alleged by i LILCO to support the exemption request. In short, even if your j 2

See Lono Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, NRC (March 2, 1987) (slip op. at 24) (Edles concurringI I"the intervenors would appear to be entitled at least to raise allegations that the exercise failed in a substantial manner to demonstrate compliance with critical asgects of the Commission's emergency planning regulations ).

e - - - - - ----- -

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l KIRKPATIUCK & LOCKHART Harold R. Denton March 3,1987 Page 5

4. LILCO seeks to blame the Governments for LILCO's viola-tion of the one-year rule. The truth is precisely the opposite:

LILCO's own failures and lack of capabilities that were revealed by the exercise have caused LILCO to be unable to satisfy the  !

one-year rule. Now, LILCO is turning to the Staff for a bailout.

Thus, the true reason that LILCO finds it necessary to request an exemption from the one-year requirement is that LILCO's perform-ance during the February 13, 1986 exercise was fatally flawed.

Indeed, the lack of skill and knowledge of LILCO's personnel during the exercise and the fundamental flaws in LILCO's emergency plan have not only necessitated complex litigation before the Frye Licensing Board, they have caused LILCO itself to make two major revisions -- Revisions 7 and 8 -- to the LILCO plan since the exercise.4 In essence, LILCO is now making the absurd claim that because the exercise proved LILCO's emergency plan so deficient, LILCO should now be given special dispensation to have the exercise results considered under circumstances not provided by NRC regulations. Surely, it is preposterous for LILCO to ask to be rewarded by the NRC for LILCO's own failures.

In short, LILCO's only course is to file properly for an exemption with either the commission or the OL-5 Licensing Board.

In either of those forums, LILCO would have to sustain its burden of proving, among other things, that it would be consistent with law and policy and the public interest for the Commission even to consider the February 1986 exercise results to be relevant given i

4 The Governments have learned through discovery that another Plan revision -- Revision 9 -- is currently being prepared by LILCO.

KIRKPATRICK 6. LOCKHART Harold R. Denton March 3, 1987.

Page 6 i

' the fatal defects of the exercise, the fact that a remedial exer-cise is necessary, and the fact that LILCO's proposed plan has changed in profound respects since the exercise and still is i inadequate.)

Sincerely, Herbert H. Brown

'i

,i 1

i Enclosure i

cc: Service List i

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Forexample,LhLCO'slatestproposedplan has different relocation centers, and different procedures for registering, i

monitoring, and decontaminating evacuees and vehicles, has new l

procedures for registrating radiological monitoring and

decontamination of special facility evacuees, has no emergency

1. broadcast radio station, has not identified reception centers for school children or special facility evacuees, and has no agreement with the American Red Cross. FEMA's latest RAC review

-- the December 15, 1986, review of Revisions 6, 7, and 8 of the Plan which was transmitted to the NRC via Mr. McLoughlin's letter of December 30, 1986 -- identified jji inadequacies, significantly more than the previous RAC review.

I

KIRKPATRICK & LOCKHART SoCTN Lo88Y . 71H Floor excxANot Pucs 1800 M STREET, N.W. Il sTAft stmast TASHINoToN. D C. 2004Sett g',

1434 BRACLLL AvtNut nurnoNt non nssano mu- oc u y  ?

Ttt.1 COPER con UMIOo PTTT18LSCH. PA 41222-5)M HER8ERT H. BROTN isin ass 4too February 6, 1987 Harold R. Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docket No. 50-322-OL LILCO Request for Exemption from 10 C.F.R. Pa rt 50, Appendix E

Dear Mr. Denton:

This is in reference to the filing made by the Long Island Lighting Company ("LILCO") with your office entitled " Licensee's Request for Exemption From 10 C.F.R. Part 50, Appendix E," dated January 22, 1987 (hereafter, the " Exemption Request"). On behalf of Suffolk County, and with the authorization of the State of New York and the Town of Southampton (collectively, the " Govern-ments"), va are writing to inform you that your of fice lacks jurisdiction to consider LILCO's Exemption Request, and that the filing accordingly must be returned to LILCO with instructions that it be filed properly either with the Commission or the Shoreham Licensing Board presiding over the post-exercise litiga-tion.

As you know, the Shoreham operating license proceeding is contested. One of the pending issues in the litigation is whether the results of the LILCO Exercise conducted on February 13, 1986, provide a sufficient basis for issuing a license Authorizing operation above 5% power. The Licensing Board has admitted for litigation contentions on issues arising out of the Exercise. Each of those contentions alleges that the Exercise revealed fundamenta1 flaws in LILCO's proposed of f-site emergency plan and the lack of compliance with the NRC's emer-gency planning regulations.

LILCO's Exemption Request relates directly to the issues in the contested proceeding, including contentions which address whether the Exercise satisfies Part 50, Appendix E requirements M~~

y )/-@i c '7 ' // , an VM D D

KIRKPATRICK & LOCKHART Harold R. Denton February 6, 1987 Page 2 for a full participation exercise. For example, in its Exemption Request, LILCO asserts that the February 13, 1986 Exercise can serve as the basis for licensing operation above 5% power and that LILCO should be relieved from having to satisfy the Appendix E requirement that a full participation exercise occur within 12 months of the grant of a full power license. LILCO's position that the scope of the Exercise satisfied the full participation exercise requirements of Appendix E and that the results of the Exercise can provide the basis for the findings necessary under 10 C.F.R. S 50.47 is not only contested, but is directly at issue in the licensing proceeding. See Prehearing Conference Order in the Shoreham OL-5 Proceeding (Ruling on Contentions and Estab-lisning Discovery Schedule), October 3, 1986.

It is fundamental in NRC practice that issues which are contested or which by regulation or statute require a decision by the Commission or a licensing board may be decided only by the Commission or a board. The NRC Staff has no authority to decide such issues. See, e.g., Commonwealth Edison, Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-84-2, 19 NRC 36 (1984); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313 (1978); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),

ALAB-298, 2 NRC 730, 733 (1975); consolidated Edison Co. of New York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947 (1974);

Washington Public Power Supply System (Hanford No. 2 Nuclear Power Plant), ALAB-113, 6 AEC 251 (1973); Vermont Yankee Power Corp. (Vermont Yankee Station), AL AB-12 4, 6 AEC 358 (1973).

LILCO's Exemption Request deals directly and fundamentally with contested issues already pending in the Shoreham OL-5 proceeding.

Therefore, only the Commission or the Shoreham Licensing Board may consider the Request.

In light of LILCO's misfiling of the Exemption Request with your office, it is premature to address the merits of the Request or for the Governments to place into dispute material issues of fact. Should LILCO properly file an Exemption Request, the Governments will respond in accordance with their responsibili-ties under the regulations so as to obtain a hearing and a denial of the Request. Nevertheless, for your information, we note that LILCO cannot seriously argue that it is entitled to an exemption in the present circumstances, where an exemption would have only the effect of making the exercise results further outdated, stale, and of no pertinence to the reasonable assurance standard; where FEMA found five deficiencies and concluded in any event

[ ' KIRKPATRICK & LOCKHART 4

Harold R. Denton

$ February 6, 1987 i Page 3 i

l that it cannot make a reasonable assurance finding; and where FEMA's RAC Chairman for Shoreham stated under oath that a remed-q ial exercise is necessary.

i Finally, the Governments point out that the format and content of LILCO's filing are grossly deficient and subject to

! summary dismissal in their present form. Having participated in the extensive 1984 proceedings involving LILCO's request for an exemption from GDC-17, LILCO, perhaps more than any other util-ity, should know that exemption requests require serious and meaningful documentation. LILCO's filing is superficial and contrived; it was not accompanied even by supporting affidavits or corroborating data. In the event LILCO chooses to refile, the i Governments will insist that LILCO fully satisfy its obligations and burden of proof under the NRC's regulations.

Should you disagree with the Governments' position'that your office lacks authority to consider LILCO's request, the Govern-I ments would appreciate your prompt advice and an opportunity for j

an early meeting at which to discuss this important matter. "

Sincerely yours,

,?

I Herbert H. Brown j cc: Service List i

f I

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