ML20206M907

Lilco Comments on Immediate Effectiveness of Board 881121 Memorandum & Order.* Urges Commission to Make 881121 Decision Effective & Authorize Issuance of 25% Power OL for Plant.Certificate of Svc Encl

ML20206M907
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/23/1988
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#488-7560 LBP-88-24, OL-3, OL-6, NUDOCS 8812020061
Download: ML20206M907 (9)

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[46 NUCLEAR REGULATORY COMMISSION

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Before the Commission yc, , 6 In the Matter of )

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

) (25% Power) ,

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S COMMENT? ON THE IMMEDIATE EFFECTIVENESS OF THE UCENSINO BOARIrS NOVEMBER 21 MEMORANDUM AND ORDER Pursuant to 10 C.F.R. 5 2.764(f)(2), LILCO files these commenta in connection i l

with the Commission's review of the immediate effectiveness of the November 21,1988 Memorandum and Order of the Atomic Safety and Licensing Board authorizing the Di- l rector of Nuclear Reactor Regulation to issue a license to operate the Shoreham Nucle-  ;

ar Power Station at 25% of ' rated power upon his making findings on matters specified I in 10 C.F.R. 5 50.57(a). In LILCO's view, no health and safety concerns remalr. that  ;

warrant a stay of the 25% power lleensing authorization in the November 21 Order. [

Therefore, LILCO respectfully urges the Commission promptly to kuthorize issuance of t a 25% power operating license for Shoreham.

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!. Background LILCO's motion for authorization to operate Shoreham at 25% of its rated capae-  !

ity has been pending before the NRC since April 14. 1967, when LILCO, anticipating difficulties in meeting summer demand without some portion of Shoreham's capacity,  ;

requested that the Commissioti grant expeditiously LILCO's request for a 25% power 11- l cense. See Request for Authorization to increbe Power to 25% and Motion for Expe-  !

dited Commission Consideration (April 14, 1987). The Commission rejected LILCO's I

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request for immediate relief but indi ated that LILCO could refile its request with the Licensing Board pursuant to 10 C.F.R. S 50.57(c). CLI-87-4, 25 NRC 882 (June 11, I i

L l 1987). LILCO did so file with the Licensing Board. See LILCO's Motion for Authoriza- l l tion to increase Power to 25% (July 14,1987). l

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j On September 23,1988, the OL-3 Licensing Board issued a Concluding Initial De- ,

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i cision LBP-88 24,28 NRC (1988), in which,((1itt 3113, the Board dismissed Interve-  ;

nors from the Shoreham proceeding for their "sustained and wt11tui strategy of disobedi-l

! ence and disrespect for the Commission's adjudicatory processes." LBP-88-24, slip op.

f at 129. Having resolved all outstanding emergency planning issues in LILCO's favor, i the Ikaard authorized the Director of Nuclear Reactor Regulation, upon making any req- t i

u! site findings not embraced in the Concluding Initial Decision, to issue a full power op- I f

! erating license for Shoreham. Shortly thereatter, LILCO filed comments on the imme-i  !

diate effectiveness of the Board's decision. See LILCO's Comments on the immediate I l

Effectiveness of LBP-88-24 (October 3,1988).

f On October 7, the Appeal Board, on "narrow jurisdictional grounds," ruled that the OL-3 Board lacked the authority to distaiss Intervenors from a portion of the Shoreham proceeding - involving issues related to the June 7-9, 1988 emergency pre- I l

paredness exercise - then pending before the OL-5" Board. ALAB-902, 28 NRC _.

(1988). The Appeal Board therefore vacated the OL-3 Board's full power license autho-l l rization. LILCO's petition for review of ALAB-902, filed on October 21,is pending be- f fore the Commission.

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l In light of the Appeal Boaro's vacation of the full power licensing authorization, .

. t LlLCO filed with the "OL-6" Board a Request for immediate Authorization to Operate at 25% Power (October 21, 1988). LILCO argued that because (1) the so-called "OL-6" Board was identical to the OL-3 Board and (2) the OL-6 proceeding was not a separate proceeding within the meaning of ALAB-902, the OL-3 Board's decision in LBP-88-24 to i I

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dismiss Intervenort from the entire proceeding had the necessary effect of dismissing i

Intervenors from the 25% power phase of the proceeding.

In its Memorandum and Order, issued on November 21, the Board agreed with LILCO, finding that Intervenors had been dismissed from the OL-6 subdocket and that LILCO's request was therefore unopposed. Accordingly, the Board determined that pur-suant to the previsions of 10 C.F.R. S 50,57(c), it was "required to issue an order autho-rizing the Director of Nuclear Reacter Regulation to make appropriate findings on t

LILCO's app!!caticin and to issue the license requested." November 21 Order at 7. Th A Board further concluded that it "should refer (its] decision to the Commission through the Appeal Board as provided in 10 C.F.R. S 2.730(f) and 2.785(b)(1)," in o@r !: ' pro-vide an opportunity for the Commission to consider this decision in conjunction with its review of LBP-88-24 before it reaches any final disposition of the Shoreham ca.,e." W.

at 8.

D. Discussion The November 21 decision of the Licensing Board is analytically a !csser included action within the scope of its Concluding Initial Decision LDP-88-24. As noted previ-

, ously, LILCO filed co'nments on the immediate effectiveness of that decision on j

i October 3. Those comments remain effective, with the following additions to account for subsequent developments.

1 A.1998 Exercise issue _g

, In its October 3 comments on immediate effectiveness, LlLCO stated that "the 4

1988 exercise presents no reason to stay the effectiveness of the Licensing Board's 11-conse authorization, even though the exercise results hPve not been litigated." October 3 Comments at 22. LILCO further noted that, at that time,it was "questionable wheth-er the 1988 exercise results will be litigated," due to the Board's decision to dismiss In-l tervenors from the entire Shoreham proceeding. M. at 22 n.19.

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The Appeal Board's decision in SLAB-902 reinstating Intervenors in the excretse proceeding does not undercut LILCO's position on the 1988 exercise. As LILCO pointed out in its October 3 comments,"even if the Intervenors were allowed to litigate the re-cent excretse, it is not likely that they would identify new problems, or shed additional  ;

light on those FE51A has already identified in its Post-Exercise Assessment (PEA)." M.

at 23. FE5tA found no Deficiencies in LERO's performance during the 1988, and identi-fled only a small number of ARCAs. Based on the exercise and on a Regional Assis-tance Committee (RAC) review of the LERO Plan, FE51A has reached a finding of rea-sonable assurance (or operation at 100% Dower which it has officially transmitted to the NRC. Letter, Gratit C. Peterson (FEStA) to Victor Stello, Jr.,(NRC), September 9, 1988 with enclosures.

In light of the reduced offsite consequences and greatly extended accident timing that would result from an accident occurring at 25% power, the Commission can have even greater confidence in relying for 25% power operation on FE51A's finding of reasonable assurance for full power operation. The immateriality '? exercise results, given operatloa restricted to 25% power, will certainly be one of the issues addressed by the Director of NRR prior to hM making a finding of reasonable assurance under 10 C.F.R. S 50.57(a).M Storeover, it is by no means assured that Intervenors will ultimately be entitled to a hearing on the 1988 exercise. In pleadings filed recently before the OL-5 Board, LILCO has requested that all of Intervenors' merits contentions on the 1988 exercise be  !

F Indeed, the Board noted in its November 21 Order that in authorizing the issu- ,

ance of a 25% power license in the absence of a reasonable assurance findir.g. the Board "harbor {m) no concern that any important matters portainir.g to public health and.

safety will go unreviewed because the provision of the regulation requiring the Director  ;

to makn appropriate findings in cases such as this is not a prg forma requirement."

November 21 Order at 7. The Board added that where "no such findings have been

made by the Licensing Board having initial jurisdiction, we are confident that the Di-rector's review will be substantive and thoroagh." d.

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j dismissed Oc falling to meet tne stringent pleading standards for exercise contentions.

See LILCO's Response to 1988 Exercise Contentions (November 3,1988); LILCO's Mo-tion to Dismiss Exercise Contentions 4-20 on the Basis of ALAB-903 (November 21, 1988). In addition, LILCO's petitions for review of ALAB-901 and ALAB-902 are pend-

ing before the Commission. A favorable decision on either of those petitions will fore-close Intervenors' opportunity to challenge the adequacy of LERO's 1988 exercise per-formance. In short, litigation of the 1988 exercise is f ar from inevitable.

B. Jurisdiction Over Appeals froin the November 21 Order The rationale of the Lcensing Board's November 21 Order is identical to an as-pect of its Concluding Initial Decision, LBP-88-24: dismissal of intervenors from the proceeding for misconduct. That issuo has already been brought before the Commission directly by its November 9 order.2/ Therefore, direct Commission review of all sanctions-related aspects of the November 21 Order, as well, should be placed directly before the Commission. LILCO is filing today with the Appeal Board a motion for cer-tification of the Novemi.er 21 Order.E# Commission action on this matter is needed in order to prevent potentially duplicative and contradictory simultaneous review of this matter by both the Commission and the Appeal Board.

2/ The issue of whether the scope of the Commission's direct review of the sanc-tions issue includes the Licensing Board's application of the realism principle, contained i in the Commission's regulations of 10 C.F.R. S 50.47(a)(1), has been raised in correspon-dence from counsel for Intervenors on November 10. As counsel for LILCO pointed ott in a November 16 response, the two issues are unavoidably tied together, since Interve-nors justify a major portion of ine conduct for which the Licensing Board sanctioned them on the premise that the Licensing Board's application of the realism rule was in-correct. LILCO therefo;a intends to brief both of these issues to the Commission.

However, clarification of the Commission's intent on this matter would eliminste po-tential confusion before the Appeal Board, since LILCO's briefs are due on December i both to the Commission on the .anctions (and presumably, realism) issues and to the Appeal Board on the balance of issues appealed from by Intervenors.

3/ Today Intervenors have also asked the Appeal Board to stay the November 21

Order. ,

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4 III. Conclusion The Licensing Board, having ct,nitrmed Intervenors' dismissal from the OL-6 subdocket, has resolved in LILCO's favor the remaining obstacles to a 25% cower op-erating !! cense No issue remaining before the Commission warrants the imposition of a stay of the Licensing Board's license authorization in the November 21 Order. In ad-dition, no public interest consideration requires such a stay. For the reasons set forth in LILCO's Comments on the immediate Effectiveness of LBP-88-24 (October 3,1988),

as modified above to account for subsequent developments, LILCO respectfully urges the Commission to make the November 21 decision effective and, upon review of the Staff's findings pursuant to 10 C.F.R. S 50.57(a), authorize the issuance of a 25% Power operating license for the Shoreham Nuclear Power Station.

Respectf ully submL ..u, 1

P6 C N Donald P. Irwin David S. Harlow Counsel for Long Island Lighting Company Hunton & Williams 70? East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED

November 23,1988 l

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<6 LILCO, November 23,1988 90 CDLt D=cuno I I 28198[A P7 CERTIFICATE OF SERVICE

\ ,ggggg4 h Eicra;QCU G In the Matter of LONG ISLAND LIGHTING COMPf.NY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-6 I hereby certify that copies of LILCO'S COMMENTS ON THE IMMEDIATE EF-FECTIVENESS OF THE LICENSING BOARD'S NOVEMBER 21 MEMORANDUM AND ORDER were served this date upon the following by telecopier as indicated by one as-terisk, by Federal Express as indicated by two asterisks, or by first-class mall, postage prepaid.

Lando W. Zech, Jr., Chairman

• William C. Parler, Esq.

• U.S. Nuclear Regulatory Commission General Counsel One White Flint North U.S. Nuclear Regulatory Commission 11555 Rockville Pike One White Flint North Rockville, MD 20852 11555 Rockville Pike Rockville, MD 20852 Commissioner Thomas M. Roberts

• U.S. Nuclear Regulatory Commission Christine N. Kohl, Chairman **

One White Flint North Atomic Safety and Licerding 11555 Rockville Pike Appeal Board Rockville, MD 20852 U.S. Nuclear Regulatory Commission East-West Towers, Fif th Floor Commissioner Kenneth M. Carr

• 4350 East-West Highway U.S. Nuclear Regulatory Commission Bethesda, MD 30814 One White Flint North 11555 Rockville Pike Alan S. Rosenthal **

Rockville, MD 20852 Atomic hiety and Licensing Appeal Board Commissioner Kenneth C. Rogers

• U.F. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers, Fitth Floor One White Filnt North 4350 East-West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852 Dr. W. Reed Johnson "

Commissioner James R. Curtiss

• Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board One White Filnt North U.S. Nuclear Regulatory Commission 11555 Rockville Pike 115 Falcon Drive, Colthurst Rockville, MD 20852 Charlottesville, VA 22901 l

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e-James P. Gleason, Chairman ** Lawrence Coe Lanpher, Esq.

• Atomic Safety and Licensing Board Karla J. Letsche, Esq.

513 Gilmoure Drive Kirkpatrick & Lockhart Silver Spring, MD 20001 South Lobby - 9th Floor 1800 M Street, N.W.

Dr. Jerry R. Kline ** Washington, DC 20036-5891 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Fabian G. Palomino, Esq.

• East-West Towers, Fourth Floor Richard J. Zahnleuter, Esq.

4350 East-West Hwy. Special Counsel to the Governor Bethesda, MD 20814 Executive Chamber Room 229 Mr. Frederick J. Shon ** State Capitol

.itomic Safety and Licensing Board Albany, NY 12224 U.S. Nuclear Regulatory Commission East-West Towers, Fourth Floor Alfred L. Nardelli, Esq.

4350 East-West Hwy. Assistant Attorney General Bethesda, MD 20814 120 Broadway Room 3-118 Dr. David L. Hetrick ** New York, NY 10271 Professor of Nuclear and Energy Engineering George W. Watson, Esq. **

The University of Arizona William R. Cumming, Esq.

Tucson, Arizona 85721 Federal Emergency Management Agency Secretary of the Commission 500 C Street, S.W., Room 840 Attention Docketing and Service Washington, DC 20472 Section U.S. Nuclear Regulatory Commission Mr. Jay Dunkleberger 1717 H Street, N.W. New York State Energy Office Washington, DC 20555 Agency Building 2 Empire State Plaza Atomic Safety and Licensing Albany, NY 12223 Appeal Board Panel U.S. Nuclear Regulatory Commission Stephen B. Latham, Esq. **

Washington, DC 20555 Twomey, Latham & Shea 33 West Second Street Adjudicatory File P.O. Box 298 Atomic Safety and Licensing Riverhead, NY 11901 l

Board Panel Docket l U.S. Nuclear Regulatory Commission Mr. Philip McIntire l Washington, DC 20555 Federal Emergency Management Agency Edwfn J. Reis. Esq.

• 26 Federal Plaza U.S. Nuclear Regulatory Commission New York, NY 10278 i One White Flint North i

11555 Rockville Pike Jonathan D. Feinberg, Esq.

Rockville, MD 20852 New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, NY 12223 i

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'.i Ms. Nora Bredes E. Thomas Boyle, Esq.

Executive Coordinator Suffolk County Attorney Shoreham Opponents' Coalition Building 158 North County Complex 195 East Main Street Veterans Memorial Highway Smithtown, NY 11787 Hauppa' Te, NY 11788 Evan A. Davis, Esq. Dr. Monroe Schneider Counsel to the Governor North Shore Committee Executive Chamber P.O. Bt *231 State Capitol Wading !ver, NY 11792 Albany, NY 12224 R'35.Han/-

(DayjdTTiarlow Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 23,1988 l

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