ML20206N000
| ML20206N000 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/03/1988 |
| From: | Gleason E NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20206M964 | List: |
| References | |
| OL-6, NUDOCS 8812020130 | |
| Download: ML20206N000 (137) | |
Text
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
f i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina ADDeal Board
)
In the Matter of
)
) Docket No. 50-322-OL-6 IANG ISIAND LIGHTING COMPANY
)
(25% Power)
)
(Shoreham Nuclear Power Station, Unit 1) )
)
AFFIDAVIT OF EUGENE J. GLEASON DIRECTOR OF PLANNING i
NEW YORK STATE ENERGY OFFICE EUGENE J. GLEASON, being duly sworn, deposes and says:
1.
I am Eugene J.
Gleason, and I am presently employed by the New York State Energy Office as Director of Planning, a
position I have held since December, 19510.
A copy of my resume is attached.
j 2.
The State Energy Office has been and continues to be the t
lead agency in New York State government for energy policy, planning and forecasting analysis.
The State Energy Of fice is responsible for undertaking analyses to determine present and projected energy use, supply and demand, and for providing advice I
to the Governor and the Legislature with respect to all energy-related matters, including how best to obtain and maintain an l
8812O20130 081123 l
PDR ADOCK 05000322 g
PDR u
4 adequate and continuous supply of safe, dependable and economical energy for the people of the State of New York. (See generally, y
Sections 3-101, 5-105 and 5-107 of the New York State Energy Law.)
t 3.
As part of my official duties at the State Energy office, I manage the Agency's studies and analyses related to electricity supply planning.
I manage an interdisciplinary staff of 23 professionals who, among other duties, perform electricity supply analyses on a continuing basis.
We frequently provide testimony on electricity supply matters in State and Federal regulatory proceedings, including those conducted by the Federal Energy Regulatory Commission, the New York State Public Service Commission and the New York State Department of Environmental Conservation.
I have previously submitted an affidavit to the i
1 Nuclear Regulatory Commission in December 1984 regarding the Long
{
t Island Lighting Company's
("LILCo")
efforts to license the 3
f Shoreham Nuclear Power Station, in which I addressed LILCO's assertion that the facility was necessary to meet forecasted
{
t l
electricity demand in LILCo's service territory.
That affidavit i
l was provided in support of the State's opposition to the granting I
of a low power license for Shoreham.
l t
4.
I am informed that a decision by a Licensing Board of the 4
1 Nuclear Regulatory Commission authorized the NRC Staff to issue to l
the Long Island Lighting
- Conpany, upon making any requisite i
findings, a license authorizing the operation of Shoreham at 25%
f j
2 l
i 4
4
_ _, _ _ _ ~, _ _ _ _ _., _,, _.. - _ _ _ - -. - - _ _. _,... _ _... -.
7 of its rated power.
I understand further that the State of New York intends to seek a stay of issuance of such a license.
As part of the stay application, I have been requested to provide data on whether there would be an adverse impact on the supply of 4
electric power to Long Island if Shoreham wero not to operate immediately, LL.,
if Shoreham were barred from operating until there had been full appellate review of the decision.
1 1
~
5.
The views and statements contained herein represent the views and statements of the New York State Energy office.
i l
6.
It is my professional
- opinion, based on analyses performed under my direction, my review of the most recent j
analyses prepared by LILco, my review of recent events in LILco's service territory, and work I have performed or managed on these j
matters over the past eight years, that operation of shoreham at f
any power level is not essential either in the near term or in the I
long term to ensure a reliable supply of electricity to Long l
j Island.
I I
The details regarding the foregoing conclusion are set forth in succeeding paragraphs of this affidavit and in the attachments hereto.
However, the salient points may be summari:ed as follows.
In the near term -- the period from now until summer 1989 -- there is no need on Long Island for the power generated by Shoreham.
i The reason for this is that the likely peak electric demands 3
i between now and next summer are substantially less than the t
electric power supplies available to LILCo during this near term period.
This is the case because peak electric demand during winter and spring is far less than peak demand during summer.
LILCo's existing available electricity resources when compared with LILCo's projected demand should result in reserve margins of more than double the minimum reserves required during this near l
term period.
r I
It in a somewhat closer question whether Shoreham's power is needed in erder to meet peak demand in summer 1989 and beyond. As described hereafter, the summer season on Long Island is the period of the year when the greatest demand for electric power is experienced.
Notwithstanding previous claims that Shoreham's power would be essential to meet peak loads in summer 1988 and other previous summers, the fact is that Long Island's energy l
.needs have been met in the past years even in the absence of Shoreham operating and despite record peak demands, f
i t
LILCo predicts increased power demand levels in summer 1989.
In these circumstances, it is my conclusion that LILCo would be somewhat below reserve margin guidelines in summer 1989 if Shoreham were not to operate and if the status quo releted to electricity supply and demand were to remain unchanged.
- However, it is likely that, regardless of Shoreham's operational status, l
l the status quo related to electricity supply will not remain the l
i 4
n-,
- - -- ~ -,. -,.
y
same.
There should be satisfactory summer 1989 reserves, even without Shoreham's electricity, because it now appears probable that by next summer, LILco will be able to add up to 240 megawatts (Mw) of additional capacity from three 80 Mw gas turbines to be sited either in the Town of Brookhaven and/or the Village of Port Jefferson.
Final authorization for three such gas turbines has already been granted by the Town of Brookhaven.
The Village of Port Jefferson has granted preliminary authorization for two of these turbines and their final authorization is likely to be granted in the near future.
In those circumstances, therefore, the anticipated small reserve margin deficiency that might otherwise be predicted for summer 1989 is in fact unlikely to occur.
Thus, even in the absence of Shoreham's power, it is my conclusion that during the summer of 1989, when peak demand will be experienced, LILco should meet its reserve margin requirements without Shoreham's power.
7.
Without operation of Shoreham and despite larger than expected increases in electricity demand, the reliability of electricity service on Long Island has not deteriorated over the last two years.
In fact, during the last two years LILco did not have to resort to voltage reductions or brownouts because LILco lacked sufficient electricity supplies, even though the actual electricity demand experienced by LILco at the time of summer and winter peak significantly exceeded LILco's forecast, o
on August 17,
- 1987, LILCo experienced a summer peak 5
s, demand of 3,576 Mw, which was 76 Mw higher than LILCO's projected summer peak demand of 3,500 Mw.
i o
on January 14, 1988, LILCO experienced a winter peak i
demand of 2,935 Mw, which was 60 Mw higher than LILCO's 1l projected winter peak demand of 2,875 Mw.
o On August 15,
- 1988, LILCO experienced a summer peak demand of 3,822 MW, which was 142 Mw higher than LILCO's projected summer peak demand of 3,680 Mw.
l 8.
LILCO has recently acknowledged that the reliability of
{
electricity service on Long Island will improve without j
commercial operation of Shoreham.
l o
Figure 1,
entitled "Forecasted LILCO Reliability Levels", is a photocopy of a graph taken from a document entitled "Summary Report on LILCO'S Energy Conservation j
and Load Management for 1989 and Beyond" which was prepared by LILCO's Office of Corporate Planning and submitted in New York State Public Service Commission (NYSPSC) Case No. 28223:
Conservation of Electricity by l-Russell C.
Youngdahl, President and Chief Operating j
officer of LILCO, on August 18, 1988.
1
}
o Figure 1
reflects LILCO's own judgement that a
i significant improvement in the forecasted reliability of LILCO electric service will occur without operation of 4
l Shoreham as measured by reduced levels of anticipated l
brownouts.
As stated on Page 2 of LILCO's Summary 6
l
}
4
r Report identified above:
"Figure 1 shows the system reliability with all these resource additions It; indicates a reliable svatem will be orovided by 1990 with 1989 sianificantly inoroved by 50% as measured in reduced level of brownouts."
(Emphasis added.)
Even though Figure i suggests that the credicted number of brownouts will exceed design objectives in 1989, I do i
not believe this accurately reflects what will happen in 1989.
I note again
- that, while LILCo's analysis predicted more than eight voltage reductions in 1988, none actually occurred as a
result of insufficient electricity supplies.
E o
Figure 1 also indicates LILCo's belief, with which I concur, that electric service reliability on Long Island i
is projected to continuously and significantly improve l
after 1988.
l 1
9.
LILCo has developed and is implementing a comprehensive program to reliably meet anticipated, electricity demand on Long i
Island without commercial operation of Shoreham.
o Tables 1 and 2,
entitled "LILCo Base System Expansion Plan",
are photocopies of the most recent projected Summer Load and capacity schedules for tha LILCo service territory and the Long Island
- region, respectively.
Tables 1
and 2
were prepared by LILCo as part of Appendix C to the "Long Island Lighting Company Request 7
i 1
l for Proposals #1",
submitted by Russell C.
Youngdahl on 1
September 12, 1988 in NYSPSC Case No. 29409 - Plans for Meetina Future Electricity Needs in New York State.
o Tables 1 and 2 represent LILco's judgement, with which I
- agree, that it can significantly improve electric service in its service terri*ory and the Long Island j
region without commercial operation of'Shoreham, o
Tables 1 and 2 represent LIT 40's judgement, with which I j
- agree, that it expects to experience a
surplus of electricity capacity by summer, 1990 without commercial f
operation of Shoreham.
o Tables 1 and 2 show that LILco's program for meeting anticipated electricity demand in a reliable manner without Shoreham consists of a series of measures which include:
A variety of specific demand-Lide management (DSM)
)
l measures.
DSM measures are programs initiated by l
l the utility and undertaken by customers which are 4
j designed to reduce forecasted demand and therefore avoid the need for additional electricity j
supplies.
{
Increased purchases of electricity from owners and operators of various independent power projects j
(IPPs).
Increased purchase of electricity from Hydro Quebec j
(HQ) through contracts negotiated by the New York I
8 i
ii..
+
Power Authority (NYPA).
Increased purchases of electricity from NYpA's Blenheim-Gilboa pump storage hydroelectric facility and NYPA's proposed expansion of its hydroelectric fccilities at Niagara Falls, New York; and Installation and operation of 240 Mw of combustion turbine capacity on Long Island.
10.
In the short term, between now and summer 1989, it is highly unlikely that LILCO will experience electricity supply 4
j problems without the commercial operation of Shoreham since the peak loads in the area serviced by LILCO do not occur during l
vinter.
Rather, these loads occur during the summer months. As I
shown below, existing capacity available to LILCO is more than j
ample to meet anticipated needs between now and next summer.
o
- LILCO, like other metropolitan New York electric utilities, has historically experienced and is forecast to continue to experience its highest demand for power during the summer months.
o Table 3,
entitled "LILCO's Summer and Winter Peak Demand", compares LILCO's historic and projected summer l
and winter peak demand from 1985 to 1997 using LILCO's data.
The data presented in this Table show a
significant difference between LILCO's historic and projected peak demand by season.
The data indicate LILCO's belief, with which I agree, L.ta t it is expected 9
4 to continue as a "summer peaking" utility during the foreseeable future.
o An analysis of LILCo's historic and projected electricity reserve margins in11 cates that LILCo is likely to possess sufficient capacity to supply electricity in a
reliable manner during non-summer months.
o Table 4,
entitled "LILCo Winter Peak Reserve Margins",
presents an analysis, based on LILCo data, of historic and forecast electricity reserve margins for the LILCo service territory during the winter peak period without commercial operation of Shoreham.
This analysis shows thr.t LILCO has provided and is expected to continue to provide reliable electric service at the time of actual and projected electric peak demand in the winter months.
o A reliable electric system, according to the New York Power Pool agreement, is a
system that maintains sufficient capacity to meet peak demand that excecds the forecast by 18 percent.
Thus, an 18 percent reserve matvin indicates a reliable electricity supply based on this measure, o
As can be seen from the data in Table 4,
LILeo's electricity reserve margin has been more than adequate at time of winter system peak since 1983 and is expected to continue to be adequate through 1997 without 10
I q
commercial operation of Shoreham.
For example, LILCo's historic data for the period 1983-1988 show reserve margins that range from 45.5%
to 58.4%.
LILCo's projectod data for the period 1988-1998 show reserve margins that range from 36.7% to 47.6%.
o The data presented in Table 4
show that adequate capacity is likely to be available during winter months I
to allow LILCO to have one or more of their baseload i
units down for servicing.
Suen servicing is frequently i
accomplisher in winter months so that the units will be i
availablw on a more reliable basis during the peak summer usage period.
Even assuming, however, that one l
or more of LILCo's baseload units is down for servicing during the winter, and even allowing for unanticipated 1
outages that might also occur, the data contained in Table 4 indicate that LILCo, without Shoreham, has an
]
ample supply of power between now and nee summer.
l o
in the unlikely event that specific op
.tional problems constrain LILCo's ability to utilize its anticipated reserve capacity during time of winter system peak, LILCo should not encounter electricity reliability problems because it will be able to inport adequatt amounts of electricity from neighboring electric utilities over existing transmission lines.
The ability of neighboring electric utilities to support LT,LCo 's need for electricity during such an unusual event is 11
f.
likely because those companies, like consolidated
- Edison, are also "summer peaking" utilities with significant historic and projected surplus electricity capacity during winter peaks.
o As an example, on February 14, 1987, LILCO experienced an operational electricity supply reliability situation, resulting frca the simultaneous loss of a number of generating stations.
LILCO was able to successfully avoid a
brownout even on that unusual occasion by importing surplus electricity from its neighboring utilities using the existing transmission system.
11.
It is also unlikely that LILCO will experience the suall projected reserve margin deficiencies (123 Mw and 165 Mw respectively) in summer, 1989, indicated by the data in Tables 1 and 2.
This is because significant progress is being made by LILCO in the siting and installation of combustion turbines on T onej Island.
As described below, it is likely that LILCO should aave un additional 240 Mw of combustion turbine capacity available during the uummer of 1989, rather than in 1990 as assumed in Tables 1 and 2.
This world result in a 1989 surplus of 117 Mw and 75 Mw in column N of Tables 1 and 2 respectively.
12.
LILCO is actively pursuing the local government permits necessary to site and operate a '. least three additional 80 Mw combustion turbines next summer.
The sites are located at i
12
r Shoreham and Port Jefferson.
The three turbines were purchased by LILCO A.) 1987 for installation at its West Babylon site.
b 13.
Based on telephone conversations with officials of the Town of Brookhaven on October 6, 1988, and November 2, 1988, I am informed that the Town of Brookhaven, New York, in which the Shoiaham site is
- located, agreed to LILCO's request for an expedited pecait approval process and on October 4, 1988 g. anted LILCO permission to proceed with necessary site work, such as the laying of foundations and the erection of structural ' teel for a s
building to house the three turbines.
On October 31, 1988, the Town granted final approval for the siting and operation of the three turbines at Shoreham.
Brookhaven's approval will allow at least two turbines to be in operation at the Shoreham site during the summer of 1989.
As a result, at least 160 Mw of additional capacity is likely to be available for LILCO ta eliminate the projected summer, 1989 reserve margin deficiency (123 Mw and 165 Mw respectively) shown in Tables 1 and 2.
It is likely that LILCo t
can also install and operate a third 80 Mw turbine at the shoreham site during the summer of 1989 if unforeseen problems develop in locating this turbine at the Port Jefferson site.
l 14.
LILCO also has sufficient land available at its existing Port Jefferson site to house two 80 Mw combustion turbines.
Based on telephone conversations with officials of the Village of Port Jefferso':, on October 6, 1988, and November 3, 1988, I am informed i
1 13 l
t that the Village of Port Jefferson agreed to expedite LILCO's permit request to site two such turbines, and on September 13, 1988 granted LILCO site plan approval necessary to proceed with required site work.
If the Village grants LILCO final approval to construct and operate the two turbines by February, 1989, an 80 Mw combustion turbine could be operating at the Port Jefferson site in July, 1989.
15.
Beyond the summer of
- 1989, and without commercial operation of Shoreham, LILCO projects sufficient capacity to meet electricity demand in a reliable manner.
(See surpluses shown in column N of Tables 1 and 2.)
If LILCO's assumptions shown in Tables 1 and 2 prove to be incorrect, i.e.,
demand is higher than projected, fewer IPPs come on line than forecast, or less DSM occurs than forecast, LILCO still should be able to reliably meet electricity demand through the installation and operation by NYPA of a second set of combustion turbines on Long Island, pursuant to legislation proposed by Governor Cuomo to implement the settlement agreement entered into between LILCO an the State of New York.
O I
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t' TABLE 3 LILCO SUMMER AND WINTER PEAK DEMAND (MW)
YEAR SUMMER PEAK WINTER PEAK 1 DIFFERENCE HISTORIC 1983 3108 2503 605 1984 3096 2729 367 1985 3380 2652 728 1986 3441 2676 765 1987 3576 2935 641 PROJECTED 2 1988 38223 2985 837 1989 3721 3045 676 1990 3765 3095 670 1991 3797 3140 657 1992 3815 3195 620 1993 3860 3245 615 1994 3945 3,400 645 1995 J960 3350 610 1996 4015 3400 615 6
a 1997 4070 3450 620
)
1/
Winter peak data is shown for the time period following the summer peak.
For example, the winter peak following the 1984 summer peak occurred on January 21, 1985.
2/
Includes forecasted peak demand impacts of LILCO DSM programs for 1989-1997 per Table 1 for summer peak values and per New York Power Pool report entitled ELECTRIC POWER OUTLOOK 1988-2001, dated April, 1988 (p.
- 15) for winter peak values.
3/
Actual uummer peak on August 15, 1988.
TABLE 4 LILCO WINTER PEAK RESERVE MARGINS (1983-1997)
NET PFAK CAPACITY RESERVE PERCENT XEAB
.{ 10.
(MW)
(MW)
BEEERVE HISTORIC DATA 1983-84 2503 3755 1252 50.0 1984-85 2729 4033 1304 47.8 1985-86 2652 3963 1311 49.4 1986-87 2676 4240 1564 58.4 1987-88 2935 4271 1336 45.5 PROJECTED DATA 1988-89 2985 4128 1143 38.3 1989-90 3045 4216 1171 38.5 1990-91 3095 4516 1421 45.9 1991-92 3140 4565 1425 45.4 1992-93 3195 4717 1522 47.6 1993-94 3245 4717 1472 45.4 1994-95 3300 4717 1417 42.9 1995-96 3350 4717 1367 40.8 1996-97 3400 4717 1317 38.7 1997-98 3450 4717 1267 36.7 L
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d DJGENE J. GLEASCN, JR.
6 Greenlea Drive Cliiton Park, NY 12065 (518) 383-1804 EMPI,0YMENT:
DIRECTOR, PLANNING BUREAU, NEW YORK-STATE ENERGY OFFICE - 12/80 - Present Manage the work program, personnel and budget of s
an interdisciplinary staff responsible for the Office's 7
analyses and progra s relating to electricity, natural l
gas, nuclear, oil ano coal resources.
Included among my duties are various environmental and energy conservation matters including:
i Support for the Commissioner as a member of the Board on Electric Power Plant Siting and the l
Environment Management of professional staff participation in federal and state electricity transmission and natural gas pipeline proceedings:
Review of professional staff analyses of the environmental aspects of SEO studies:
Staff support to the Commissioner as a member of l
the Environmental Advisory Board and the i
Governor's Energy & Environment Subcabinets i
Represent the Commissioner as a member of the Oil, Gas & Solution Mining Board of the Environmental Conservation Department:
Participate as the Commissioner's designee, on the Advisory Board to the Low-Level Radioactive Waste Siting Commission.
The primary responsibility of the Board is to analyze the adequacy of various environmental impact studies conducted by the Commission.
I Provide electricity resource supply analyses to the Department of environmental Conservation for use in implementing sne New York State Acid Deposition & Control Act at.d related air quality programs; and Manage and review the professional staff analyses and penetration estimates of various energy conservation and demand-side management measures as electricity resource supply options.
j b
.s Eugtna J. Gleacon, Jr.
~
ENERGY POLICY ANALYST V, New York State Energy Office, 5/78-11/80
- Managed the work program, personnel, and budget of the Policy Analysis Section.
Included among my responsibilities were tne review and preparation of analyses, reports and testimony on various energy conservation. and electricity load management measures and !ssues.
ASSISTANT DIRECTOR & SENIOR ANALYST, Northeast Legislative Leaders Energy Project, 6/75-5/78 Responsible for managing the daily piofessional activities of a regional scientific and technology project staff which prepared energy and environmental policy analyses for the legislative leadership of the ten Northeast states.
LECTURER, Political Science Department, Siena College, 9/75-12/75 Part-time position.
LECTURER, Rockefeller College, Graduate School of Public Affairs, SUNY at Albany, 8/77-5/78; 8/73-12/73 Part-time position.
NEW YORK STATE SENATE FELLOW, 9/74-5/75 PERSONNEL SPECIALIST, United States Mr 7orce, i
3/69-12/72 i
EDUC ATION:
Senior Executive Fellow, John F. Kennedy School of Government and Public Administration, Harvard University, 8/82-12/82.
Ph.D. candidate. Political Science Department, Graduate School of Public Affairs, State University of New York at Albany.
(ABD-6/75)
Dissertation Topict "The Politics of Energy and the Environment in New York State:
The Case of Power Plant Siting" M. A. Political Science, State University of New York at Albany (6/68)
B. A. Political Science / Economics, Villanova University (5/67)
b Euge.o J. Glca::on, Jr.
AWARDS:
New York State Energy Office Distinguished Service A ward, 198 3.
Senior Executive Fellows Program, John F. Kennedy School, Harvard University, Fall 1982.
New York State Senate Internship (9/74-5/75)
National Defense Education Act Graduate Fellowship, State University of New York at Albany (9/67-3/69; 1/73-8/74).
U.S. Air Force Commendation Medal (9/72).
U.S. Air Force Outstanding NCO (12/71).
Honor Graduate, Villanova University (5/67).
PUBLICATIONS:
Available upon request.
REFERENCES:
Available upon request.
l
s 4
October 31, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' RESPONSE TO LILCO'S REQUEST FOR IMMEDIATE AUTHORIZATION TO OPERATE AT 25% POWER On October 21, 1988, LILCO filed a Request for Immediate Authorization to Operate at 25% Power ("LILCO's Requent" 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 (i) this Board has no jurisdiction to act on the Request; (ii) assuming arcuando that the Board has jurisdiction, two members of the Board are disqualified from acting on the Request; and (iii) assuming arcuendo that the Board has jurisdiction and is not disqualified, the nequest fails on the merits.
Suffolk County, New York State, and the. Town of Southamptom (the "Governments") address each of these matters below.
Mkl
i e
I.
THE BOARD RAS 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 Board did not expressly identify the OL-6 Docket as one of the proceedings from which the Governments were being dismissed, the Board's intent, apparent from LBP-88-24, was to dismiss the Governments from the entire proceeding.
The Appeal Board recognized the broad scope of the dismissal sanction ordered in 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 issued necessarily subsumed any pending request for a 25% power license.
The Board's decision to dismiss the Governments from the entire proceeding and authorize full power operation, and the Governments' notices of appeal from LBP-88-24, divested this Board of jurisdiction over LILCO's 25% povar request.
i 1/
Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-24, 28 NRC slip op. (Sept. 23, 1988), rev'd and vacated in eart_, ALAD-9677 28 NRC (Oct.
7, 1988).
2/
ALAB Memorandum and Order, Sept. 29, 1988, at 3. Ett also, Lena 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 Board from dismissal of the Governments from the OL-6 docket on jurisdici.lonal grounds.
See ALAB-902 at 4, 7, 9, 10, 11 (emphasiz.ng that Gleason OL-3 Board could not direct dismiss.1 of matters pending before a different Board)..
i It is fundamental that jurisdiction passes from a licensing board to the appeal board upon issuance of an initial decision.
Metrocolitan Edison Co. (Three Mile Island Nuclear Station Unit No. 11, ALAB-699, 16 NRC 1324, 1327 (1982).
Similatly, 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 catter 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.
Th 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 25% power license application.
Furthermore, the 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.
Vircinia 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 Eower & Licht Co. fWaterford Steam Electric Station, Unit 3),
ALAB-797, 21 NRC 6, 8 (1985).
Under controlling NRC precedent, therefore, the Appeal Board han jurisdiction over LILCO's Request.
The issues before the l
l
, l l
l t
I.
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 natu.e of the sanctions and merits decisions in LBP-88-24 necessarily subsume LILCO'; 25% power Request, but LILCO's Request also directly involves some of the same issues that are now pending before the Appeal Board, for example, the propriety of dismissing the 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 sole jurisdiction o
address LILCO's Request resides with the Appeal Board, and this Board must therefore deny the Request for lack of jurisdiction.
II.
JUDGES GLEASON AND KLINE ARE DISQUALIFIED FROM ACTING ON THE REQUEST Assuming, arcuendo, that the OL-6 Board has jurisdiction to consider LILCO's Request, Judges Gleason and Kline are not qualified to preside over the proceeding relating to that Request.2/
LILCO has asked this Board for two forms of reliefs (1) dismissal of the Governments from the OL-6 proceeding and (2) authorization to operate at 25% power.
This Board cannot rule on either request, for Judges Gleason ar.d Kline have shown bias against the Governments and cannot act fairly and impartially in this matter.
1/
Judge Shon's dissent to LBT-88-24 reveals that he does not share the bias against the Governments that is evidenced in the majority opinion.
l,
f
The need to disqualify Judges Gleason and Kline is plain.
It is axiomatic that due process entitles the Gove;.tments to a f air hearing before an irapartial tribunal.
In Re Murchison, 349 U.S.
133, 136 (1965); Barrv v. Heckler, 620 F.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.
Egli
- v. Chandler, 569 F.2d 556, 560 (10th Cir. 1978); Webb v.
McGhie Land Title Co.,
549 F.2d 1358, 1361 (10th Cir. 1977); 28 U.S.C.
5455(a).
This is an objective standard which means that a judge must disqualify himself if a reasonable person, knowing all the circumstances, would be led to the conclusion that the judge's j
impartiality might reasonably be questioned.
Fredonia Broadcastina Corooration, Inc.__v. RCA Corporation, 569 F.2d 251, 257 (5th Cir. 1988).
The written conclusions of Judges Gleason and Kline set forth in LBP-88-24 establish that they are biased against the i
Governments and that a reasonable person would necessacily draw the conclusion that they cannot be fair and impartial in ruling on LILCO's Request.
Judges Gleason and Kline made their views toward the Governments abundantly clear in LBP-88-24:
they a
believe that the Governmcnts have malevolently tried to subvert the NRC processes.
The nature and depth of 'his opinion is plain, for LBP-88-22 is rep'.ete with invective directed toward the Governments.
Fce example, Judges Gleason and Kline wrote that 5-
(the Governments' actions) were willful, taken in bad faith, and are prejudicial to LILCO and t;a 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 (ids, at 129);
the (Governments'] strategy of non-cooperation and obstruction was deeply entwined with legitimate practice."
(id2).
(the Governments) have actively sought to frustrate the Commission's efforts to arrive at an informed judgment" (ids at 112);
(the Governments' actions] represent a pattern of substantial and continual actions.
to frustrate federal review (idt at 111);
procedural mechanisms have been consistently utilized (by the Governments) in delaying the Board and Commission in carrying out its licensing responsibilities (ids at 110); cnd (the Governments have) an overall plan to thwart (the NRC's] inquiry and subvert the Commission's process for political ends.
(idu at 102).
Indeed, Judges Gleason and Kline believe "there are no redeeming features" in any of the Governmer.tw' conduct (ids 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 impartiality of Judges Gleason and Kline with respect to the t
issues presented by LILCO's Request.
As to LILCO's re 'est that 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 context of a separate proceeding.
- Indeed, for Judges Gleason and Kline 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 challengs 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 ends."
- Egg, e.o.,
LGP-88-24 at 111.
These findings show that Judges Gleason and K)ine do not take at face value what the Governments say or do.
Instead, they set behind each move an ulterior purpose, a will to subvert, and bad faith, it is obvious that a fair evaluation of anything the Governments submit on the merits cannot reasonably be expected from judges with these predispositions.
I i l
{
't Accordingly, pursuant to Section 2.704, the Governments hereby move Judges Gleason and Kline to disqualify themselves l
from'the OL-6 proceeding.1/
III. LILCO'S 25% EQWER_ REQUEST MUST BE DENIED ON THE MERITS 4
i k
LILCO argues that it should prevail on the merits of its Request because (1) the Governments must be dismissed from the i
proceeding, (ii) no emergency planning issues are pending, and i
(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 4
r I
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 (11g LBP-88-2, 27 NRC 85 (1988)) and the probability that the 1988 Exercise established that those fundamental flaws remain uncorrected.1/
LILCO's 4/
To fully comply with procedura'. requirements, the i
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 1
i disqualification."
Because the grounds for disqualification are Judge Gleason and Kline's own statements in LBP-88-24, the l
Governments attach to this pleading the Affidavit of Karla J.
Letsche which reflects reliance on tne 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 l
exercise requirement and the Governments' right to contest (footnote continued)
Request must therefore be rejected on the merits.
A.
The Governments Should Not Be Dismissed Frem 7he OL-6 Ocpket Ir; its f renzy to obtain a license regardless of procedural 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:
Obviously, Intervenors, if civen the chance, intend to hold the 25% nower chaqm_sf this oroceedina 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 tolerated in the OL-6 subdocket.
Intervenors should be dismissed.
LILCO Request, at 10 (emphasis added).
This assertion and the scurrilous rhetoric which accompany it are merely a crude polemic designed to shift focus away from the important safety issues involved in LILCO's 25% Power Request.5/
The reality is that LILCO's argument seeks the ultimate sanction for behavior which (footnote continued from previous page) exercise results, as established by Union of Concerned Scientists v.
NRC, 735 P.2d 1437 (D.C. Cir. 1984), agra. denied, 469 U.S.
1132 (1985).
In particular, LILCO states "the renewed prospect of extended litigation of the 1988 Exercise, however, redirects attention to LILCO's 25% power request."
LILCO Request at 6.
5/
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, Intervenors are recidivists LILCO Request i
at 9.
Such statements are not only intemperate, they are completely lacking in factual foundation.
9-4
has not even hancened.
LILCO's argument also ignores the facts, the orders of this Board and proper procedures.
Turning first to the facts, the record in th'e 25% power proceedings establishes that the Governments have, without
' 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 rulent, i
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 flor 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 "hag offered 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 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 Request 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. -
founded in the law and shows a contempt for the orderly
~
procedures of adjudication.
Similarly, in refiling its request with the Licensing Board, LILCO continued :o disregard the regulations and their requirements.
As the Margulies Board stated:
Although 10 C.F.R. 50.47(c) on its face has nothing to do with applying for a license and authorizing operations at less than full power, LILCO filed its 25% power motion under this section and addressed its requirements.
3 i
It appears to the Board, that Applicant in attempting to make a case for a 25% power authorization icnored and did not address maior I1ggirements of 10 C.F.R. 50.57(c). the section of the reculations that soecifically concerns acolications authorizina coerations short of full oower operation.
Aeolicant did not modify the motion to address the recuirements o{
50.57(c) even after the Commission advised that the motion could be refiled under that section j
if it continued to want the license.
Memorandum to the Parties (Oct. 6, 1987) at 4-5.
Turning next to LILCO's disregard of this Board's orders, LILCO purports to castigate the Governments for needing time to review the Staff's October 6, 1988, "Technical Review of a Request from Long Island Lighting Company for Authorization to Operate the Shoreham Nuclear Power Station at a Power Level Up to Twenty-Five Percent of Full Rated Power (with Attachments)"
(hereafter, "Technical Review"), but ignorss this Board's clear statements that the Governments are entitled to a reasonable period of time to review and respond to the Staff's Technical Review.
In particular, this Board held that the technical issues raised by LILCO's Request cannot be eddressed "without some 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 Evcluation and a reasonable eeriod for review by the Governments' experts."l/
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 the "right to be judged independently and fairly oy 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 wi*.h federal law.
8/
Memorandum and Order (in re LILCO Request for Authorization to Operate at 254 of Full Power) (January 7, 1988) (hereafter "January 7 Order") at 11 (emphasis supplied).
1/
Idt (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.
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 s
proceeding.
Such speculation simply cannot form the basis for a dismissal sanction.
The sanction of dismissal can properly be imposed only if the Board can make a finding of bad faith supported by detailed factual findings.
Halaco Encineerino co. v. Costle, 843 F.2d 376, 381 (9th Cir. 1988); Patton v. Aeroiet ordinance Co., 765 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.
Revnolds Industries, Inc., 709 F.2d 585, 591 (9th Cir. 1983) ("sanction must be specifically related to the particular ' claim' which was at issue in the order to provide discovery.")
If LILCO wants to pursue a motion to have the Government dismissed from the OL-6 proceeding, it must submit a factually supported motion, not a baseless diatribe.
Its one sentence "request must be summarily denied.
13 -
B.
Pending Matters Prevent the Consideration of a 25% Power License.
LILCO has asserted that there are no contentions which prevent the issuance of a 2'5% power license.
This tssertion is wrong.
As is established below, numerous pending issues prevent the issuance of a license.
1.
The OL-5 Board Findinos of Fundamental Flaws The record is clear that the OL-5 Board found several fundamental flaws in the LILCO Plan.lS/
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 communicate emeroency information and erotective action recommendations to the oublic.
We conclude that the training of LERO personnel in responding to unanticipated and unrehearsed events, in communicating information about such events, in analyzing the kind of equipment needed to respond to serious roadway accidents, and in the i
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 i
problem constitutes a fundamental flaw in the Plan; this flaw resulted in part from the 1E/
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").
Lono Island Lichtino Comoany (Shoreham Nuclear PowgI. Station, Unit 1), LSP-88-2, 27 NRC 85, 92 (1988).
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 emergency response, we conclude that LILCO's trainina orocram is fundamen* ally flawed in the area of communications.
Idx at 196 (emphasis supplied).
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 251 power application as a matter of logic and law, a.td according to this Board's own prior orders.
Thus, this Board explicitly recognized that the 25% power license sought by LILCO "can issue only if its issuance, the operation of the facility, and the activities authorized will all give reasonable assuransa of the protection of health and safety and compliance with the regulations."
January 7 Order at 9 (emphasis supplied).
The OL-5 Boarc's finding tha' LILCO's Plan is fundamentally flawed la the law of this case.
That finding precludes the reasonable.
assurance finding which this Board identified as a necessary predicate for 25% power authorization.
Thus, according to this Board's own 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.ll/
Clearly, the extant OL-5 Board decision, firiding 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 simply ignores the facts.
Instead, LILCO has 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 deacribed below, neither the 1988 Exercise nor 11/
111 tini, 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 kIICO-soonsored emeroency olan and the coeration of the olant at 25) cower.
LILCO's motion clearly proposes i
these actions be "taken tecether" to demonstrate the necessary compensating action.
i LILCO's Reply Brief on 25% Power Questions (Nov. 16, 1987) at 11
{
(ellipses in original; emphasis supplied); 111 1112 LILCO Mottei for Expedited Consideration (April 14, 1987 at 2.
i l !
l
the 25% PRA provide a basis for ignorin. Ib&
Jndamental flaw findings of the OL-5 Board.
2.
The 1988 Exercice Contentions The 1988 Exercise revealed that the fundamental flaws identified by the OL-5 30ard 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 rutaitted 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 recommendations 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 Appendix C.
According to ALAB-902, this Boar' x.r.
'casider these contentions to be pending.
The Appeat e-r>
- learly held that S
"the occortunity to orocose liticable contentiens concarning the 1988 emergency exercise.
is necessarily eq11 valent to the
]
right to litigate an already admitted contention." ALAB-902 at i.
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 LILCO's technical analyses to its 25% power authorization request.
There can be no doubt, however, about their right to do so by submitting er.ter.tions in the OL-6 proceeiing.13/
LILCO relies on its technical analysis as one of only two bases for its i
R3 quest.
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:
4 Ac' on (c motion to operate at low power) shall be take
)y the presiding officer with due regard to the r'y'.ts of the parties to the proceeding, includina the 1141t of any carty to be heard to the extent that his 12/
The OL-6 Board ordered Judge Hetrick to decide whether pending contentions were "relevant to LILC0's proposed operation at 25% full power and whether applicant's motion should be granted pursuant to the provisions of 10 C.F.R. 50.57(c)."
The Governments have thoroughly briefed the impact of the OL-5 Board fundamental flaw findings en. LILCO's 25% Power Request.
Now that the new exercise contentions have been filed, Judge Hetrick must i
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 rev'. ewing issues, and LILCO has articulated no reason why th' f
tradure chall not bw followed.
13/
The Gover
,1s hav vet filed contentions on these a
issues becaur; 3^ "d 5 that the Governments would have a reasonablu t~
s staf f's Technical Review before addressing t, 4
1 hen the BoaJe establishes a s.
schedule for 11
.4, the Governments will be prepared to submit conte
.mely fashion.
I 1
i i
i i
I conter.tions are relevant to the activity to be puthorized....
(emphasis added).
Clearly, under Section 50.57(c), the parties to this proceeding have the right to advance contentions relevant j
to the technical bases of LILCO's authorization request, once the j
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.
Indeed, recognizing the clear import of the Section 50.57(c) language, the Staff proposed that the parties be abic to advance i
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, 1?87) 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 whetner pending contentions in the proceeding are 4
.; (2) allow any party Eith relsvant to the request contentions thg concrtunity to show that those contentions are so relevant; and (3) findings on the application of the 50.57(a) matters to the ac?.ivity to be sought to be licensed with respect to the matters in controversy.
Jar.uary 7 Order at 7 (emphasis supplied).
The Governments are 1
entitled to pursue already pending relevant contentions, and new relevant contentions.
j i
- 1 4
4 There can be no doubt that the Governments have a right to file contentions, for the procedure was advocated by the Staff, recognized by LILCO,14/ and adopted by the Board.
Accordingly, in addition to the emergency planning matters and'the 1988 exercise contentions, on reasonable notice, the Governments arr
' prepared to submit for litigation contentions showing that the risk of operation at 25% power is not several orders of magnitude l
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.
j 2.
The values for frequency of loss of offsite power, power recovery rates and failure of i
I 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 j
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 l
sequences, soil / structure interactions, j
aftershocks and relay chatter.
I i
5.
High pressure melt ejection and direct containment heating have not been correctly i
modeled in the PRA.
I l
i 14/
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.
Egg l
LILCO's Reply Brief on 254 Power Questions, Nov. 26, 1987 at 6-7.
i l t
O.
LILCO Cannot Demonstrate that the Risk of Operation at 25% Power Involves a Risk Reduction of several orders of Macnitude.
In a c,.plete about face from LILCO's original request fer 25% power operation authorization, which argued that a 25% power license should issue because there was reduced risk and an adecuate glan, LILCO now arguee 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% oower license.
Nevertheless, LILCO now cites the Staff's Technical Reviee as support for this new pecposition.
The reliance on the Staff Review is just plain wrong.
First, the Staff explicitly drag n.q conclusions as to whether the reduced risk at 25% power makes emergency planning issues immaterial.
The NRC Staff's October 1988 Technical Review addressed Enly the question of the validity of LILCO's claim that risks and consequences are reduced at 25% power.
It did nat address the safety consequences of that reduction.
The Staff explicitly stated as follows:
i l
The staff's tee 5nical 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 eercent cower restriction would constitute adecuate comeensatiac measures.
Instead, the emphasis ot~ this technical review is on 21 -
t comparisons between operation at 25 percent power and at full power and the effects of the power reduction on various aspects of postulated accidents.15/
The Staff's limited Technical Review makes no safety conclusions, fails to address 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 standards the Staff mnkes an such findino.
Indeed.,
the inference to be drawn from the Staff's Technical Review is that risk at 25% power is a21 several orders of magnitude less than at full power.
In particulat 1)
In the detailed reports underlining the Staff's review of LILCO's PRA, the Staff acknowledges "the absolute distance at which major reductions occu; in the erobability of exceedino a EALti.ujar dose are dependent on modelling and S
uncert.inty.l_gqnsandareanargtofremainine input anaumpt
/
2)
In addition, the staff acknowledges that while the probability of exceeding a five tem dose (the upper bound PEPA PAG dosc for whole body exposure) is also reduced at 25% power "sionificent reduction does not eenerally occur within the 10 mile EPZ."
Ids (emphasis supplied) 15/
Staff's Technical Review at 1.
15/
Staff's Tecnn.i. cal Review (Enclosure 2 at 46).
2? -
s 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% powers second, a significant increase in the time to release because of the reduced heating rate g/g 25%
power; 1434, the reduced decay heat level."11 Thus, as is set forth in the attached Affidavit of Steven C. Sho11y,11/ it is apparent from the Staff's Technical I
Review that the reduced risk at 25% power is not several orders of magnitude less than the risk at full power.
In particular, as 1
is illustrated above, the probability of exceed.ng a five rem dose is not significantly reduced within the 10 mile EPZ.
l Furthermore, the reduced risk from fission product inventory 15 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.
4 I
IV.
CONCLUSION For the reasons set forth above, LILCO's Request should be i
i denied.
i k
1 11/
Staff'9 Technical Review at 4.
4 i
18/
A notarized version of Mr. Shelly's Affidavit will be submitted as soon as possible. '
l
L l
Respectfully submitted, E. Thomas Boyle l
Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauga, New York 11788 K.
Herbert H. Brown Karla J. Letsche David T. Case KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County W
N<
FKbian G. Palomino Special Counsel to the Governor l
of the State of New York i
Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Govern r of the State of New York L
l W.
I/F W l
Stephen
. Latham
{
j
- Twomey, atham & Shea P.O. Box 398 33 West Second Street Riverhead. New York 11901 Attorney for the Town of i
Southampton l
L f
24 -
,p t
October 31, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~
Before the 61smic Safety and Licensino Board 1
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Suclear Power Station,
)
Unit 1)
)
i l
)
QERTIFICATE OF SERZlCE l
e 5
I hereby certify that copies of the GOVERNMENTS' RESPONSE TO t
LILCO'S REQUEST FOR IMMEDIATE AUTHORIZATION TO OPERATE AT 25%
i POWER and GOVERNMENTS' MOTION TO DISQUALIFY ADMINISTRATIVE JUDGES GLEASON AND KLINE FROM PRESIDING OVER LILCO'S REQUEST FOR i
IMMEDIATE AUTHORIZATION TO OPERATE AT 25% POWER have been served on the following this 31st day of October 1988, by U.S. mail.
1 James P. Gleason, Chairman Mr. Frederick J.
Shon Atomic Safety und Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C.
20555 Dr. Jerry R. Kline William R. Cumring, Esq.
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency !
500 C Street, S.W., Room 840 i
Washington, D.C.
20472 l
5 I
[
t
l t
o Fabian G. Palomino, Esq.
W. Taylor Reveley, III, Esq.
Richard J. Zahleuter, Esq.
Hunton a Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq.
Anthony F. Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suice 1020 175 East Old Country Road Albany, New York 12210 Hickoville, New York 11801 E. Thomas Boyle, Esq.
Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffol.. County Legislature 2.
Bldg. 158 North County Complex Suffolk a'ounty Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F.
Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea i
Shoreham Nuclear Power Station 33 West Second Screet North Country Road Riverhead, New York 11901 Hading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street Washington, D.C.
20555 Smithtown, New York 11787 1
Alfred L. Nardelli, Esq.
Hon. Patrick G. Halpin Assistant Attorney General Suffolk County Executive New York State Department of Law H.
Lee Dennison Building I
120 Broadway Veterans Memorial Highway l
Room 3-118 Hauppauge, New York 11788 New York, New York 10271 t
)
MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231
{
San Jose, California 95123 Wading River, New York 11792
[
Mr. Jay Dunkleburger Edwin J. Reis, Esq.
New York State Energy Office George E. Johnson, Esq.
i r
Agency Building 2 U.S. Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel Albany, New York 32223 Washington, D.C.
20555 f
i l
l 1
t David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay Federal Emergency 'tanagement Town Hall Agency Oyster Bay, New York 11771 26 Federal Plaza New York, New York 10278 Christine N. Kohl, Chairman Alan S. Rosenthal Atotnic Safety & Licensirig Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulator */ Commission Washington, D.C.
20555 Washington, D.C.
20555 l
l Howard A. Wilber Adjudicatory File t
Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Board Panel Docket U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 9
l.sm
}
464ws/
j awrence Coe Lanpher' i
j KIRKPATRICK & LOCKRART t
1800 M Street, N.W.
South Lobby - 9th Floor
{
Washington, D.C.
20036-5891
[
[
i i
i I
i
[
t
[
t t
'l 1
l t
Aoril 1, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
Before the Atomic Safety and Licensino Beard
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' BRIEF IN RESPONSE TO FEBRUA*X 26. 1988 BOARD ORDER The Governments (Suffolk County, the State of New York, and j
the Town of Southampton) submit this brief in response to the Board's Order of February 26, 1988.
That Order sought discussion of "the impact of pending emergency contentions (sic] on a rea-sonable assurance finding authorized by 10 C.F.R. 50.57(c)."
I.
INTRODUCTION As the Board requested, in this brief the Governments t dress the ir.act of the outstandinq emergency planning issues in this case on LILCO's request for a license to operate Shoreham at 25% of rated power.1/
The Governments demonstrate that it is not even necessary to review or otherwise consider LILCO's technical 1/
Ett LILCO's "Request for Authorization to Increase Pcwer to 25%," dated April 14, 1987 (hereafter, "LILCO's Request" or the "Request").
gc/f) r fn / n I n G n n.
g() v q u w G/t v ~
gSrl'
i 4
i assertions or even its 25% power PRA to determine that LILCO's Request must be denied.
The Governments show that the pending emergency planning issues, including the OL-S Board's two deci-sions adverse to LILCO lLBP-87-32 and LBP-88-2) discussed in Sections II and III below) and the OL-3 remand issues (discuwsed in Section IV below) not only are relevant to LILCO's proposed 25% power operation, but also preclude the reasonable assurance findings required for license issuance under Section 50.57.
Not only is it unnecessary to do so, but the Governments cannot and therefore do not address in this brief the technical and PRA-related issues raised by LILCO's Request.
The Govern-ments, like the Staff, cannot address such technical issues at this time for two reasons.2/
First, as the Board acknowledged, the technical issues raised by LILCO's request cannot be addressed "without some opportunity for the Governmerts to review both LILCO's original request and the Staff's analysis thereof."l/
In the January 7 Order, the Board stated that "..
rder to focus the inqui y,"
statements by the Governments of "the ways in which any of their t
present contentions are relevant to the p;oposed operation,"
"would necessarily await the oublication of the Staff Saf ty t
2/
Therefore, if the Board were to conclude that a review of LILCO's technical analyses is required to determine whether pending contentions are relevant to the proposed 25% power operation, such a determination cannot be made at this stage of this proceeding.
2/
Memorandum and Order (In Re LILCO's Request for Authorira-tion to operate at 25% of Full Power) (January 7, 1938) (here-after, "January 7 Order"), at 11 (emphasis added).
2-
Evaluation and a reasonable naried for review by the Governments' expgrts."i/
The Board reiterated the point in its February 26 Orders i
If the Staff's technical review of the Appli-f cant's motion is not completed or made availa-ble in a timely manner, the parties will be afforded an additional opportunity to respond.
to such review.
l Finally, in the January 7 Order, the Board stated that a schedule t
for reviews, submissions, and comments would be set at some i
future time "by the proposed new Board, Special Master, Alternate Board Member or Technical Interrogator with due regard to the equities involved."1/
.To the Governments' knowledge, the Staf t' has not completed its technical review of LILCO's Request.
The Staff's Safety Evaluation relating to that Request has not been published or made available to the Governments.
Indeed, on March 9, 1988, the Staff announced that it "will not be able to file a brief sub-l stantively addressing the Board's question by April 1, 1988,"
becatise its work on responding to the Board's February 26 inquiry "is projected to be comoleted in the cariv fall of this vear.ai/
l
[
Neither the Board nor the Alternate Board Member has yet set any i
1/
- 14. (emphasis added).
1/
January 7 Order at 11.
$/
Et.t NRC Staff Response to Board Order on Relevance o8 i
Pending Imergency Planni e Contentions to Operation 25 Percent Power (sic], March 9, 1988 (hereafter, "Staff Response")
i (emphasis added).
i t
L-
schedule for reviews, discovery, or submissions on the technical issues raised by LILCO's Request.1/
f s
l Given (a) the Staff's position and projected schedule for
[
]
completion of its review, and (b) the lack of a schedule for discovery and related activitics, the Govetaments have not been I
able to undertake the review and analyses which the Board recog-
[
nized are the necessary prerequisites to technical statesents by the Governments of 'the ways in which any of their present con-
]
tentions are relevant to the proposed operation."8./
4 j
Second, even if the Staff review had been available and the 1
J Governments had, in the absence of a Board order, begun discovery 4
related to LILCO's Request, the Governments and their experts a
l r
l could not have cotten very far along in any analysis or review in
[
the short time between the Board's February 26 Order and April 1.
t
/
j The length of time required by the Staff for its review of LILCO's Request evidences the magnl*ude and complexity of the I
task at hand.
1/
This is understandable, since the setting of such a schedule f
j must await completion of the Staff's review of LILCO's Request.
i 8/
January 7 Order at 11.
Only after they have completed such f
review and analyses will the Governments be in a position to i
submit contentions conc 1rning the technical issues presented by l
LILCO's Request.
LILCO itself has recognized that if its tech-L nical analyses become the subject of this proceeding, the 1
appropriate procedure would be fo-the Governments to file i
j contentions on the technical issues.
it.1 LILCO's Reply Brief on i
25% Power Questions, Nov. 16, 1987 at 6-7.
In its November 16 I
Brief, L::LCO argued that contentions should have been filed prior
[
t I
to that tirte.
In its January 7 Order, however, the Board j
l rejected that position, recognizing that the Governments cannot be expected to file contentions en such issues until after the
[
Staff's Safety Evaluation has been completed and reviewed by the Governments' experts.
i i [
f i
I
a i
The Staff began its rev ew in 1987 (when LILCO's Request was first filed) and pursued it for roughly two months in 1987.
In the January 7 Order, the Board directed the Staff to resume its review.
Nevertheless, it will still take the Staff until gativ, fall of 1988 to complete its analyses.
Sgg Staff Response.
The Governments will require at least that much time to review and analyse both the LILCO Request and the Staff's analyses, if not more, particularly since the Governments (a) will not have l
l readily available to them the breadth of technical expertise which is readily available to the Staff, and (b) cannot even j
determine what additional technical consultants should be re-tained until after they have received the Staff's evaluation.
.For these reasons, the Governments -- like the Staff -- are
\\
unable at this time to address the technical issues raised by LILCO's Request.
As noted, however, it is r.ot necessary to
[
i address those technical issues in order to respond fully and dispositively to the Board's February 26 inquiry.
The Govern-i ments demonstrate below that given the stated bases of LILCO's Request, the law of this case, concessions made by LILCO itself, f
and the issues raised by the pendino emergency planning conten-tions, this Board cannot make the reason & ole assurance and regu-latory complianco findings which it he'.d are required under
{
Section 50.57.1/
Accordingl, LILCO's Request must be denied.
l f
i c
e i
e stuary 26 Order.
I i l
. - - l
Q II.
THE OL-5 LICENSING BOARD BAS CATEGORICALLY RL7ECTED ONE OF TEE TWO BASES FOR LILCO'S 25% POWER REQUEST; IT IS RES JUDICA?A THAT THE LILCO PLAN AND LERO CANNOT FORM THE BASIS OF A REASONABLE ASSCTRANCE FINDING A.
Introduction I
LILCO's 25% power Request proceeds under 10 CFR S 50.47(c)(1).
The Request is premised upon two alleged bases (referred to by LILCC as "interim compensating measures") which, according to LILCV, justify the issuance of a 25% power license despite its non-compliance with the emergency planning regula-tions.
The two bases for LILCO's Request aret (1) implementa-tion of the allegedly adequate LILCO Plan by the allegedly well trained and high capable LERO organization; and (2) a 25% power i
limitation.
Request at 4, 11.
i As already noted, in this brief the Governments are not able to address the second of these proposed measures however, the Governments demonstrate in this section that it is not necessary to do so.
In a decision which is binding upon this Board, the OL-5 Licensing Board has definitively rejected the firct oJ i
LILCO's r,wo bases for the 25% power Request.
LILCO's fir.vt basis for its Request has two interrelated components.
The first component is the existence, alleged ade~
f quacy, and regulatory compliance of the LILCO Plan.
- Indeed, LILCO states in its Request that the Licensing Board had con-cluded that the LILCO Plan "complies in most respects with the i
pertinent regulations."
Request at 16.
The second component is the existence of a "well-organi:ed and well-trained Local Emer-6-
o e
gency Response Organization (L3RO)," which is capable of effec-
)
tively implementing that Plan.
131 Request at 4, 16.
In a February 1, 1988 Initial Decision on the results of the l
1586 Shoreham Exercise, howeve, the Frye Licensing Board cate-I gorically held that these key premises of LILCO's 25% power Request, which together comprise one of LILCO's two proposed
(
}
bases for that Reque2t, are wrong.lS/
The Frye Board held that LILCO's Plan is inherently, fundamentally and pervasively flawed, and tnat the LERO training program is inadequate, ineffective, and fundamental.ly flawed.
Accordingly, the Board held that it could not find reasonable assurance that adequate protective measures to protect the public can and will be taken in the event l
of a.Shoreham emergency based on the LILCO Plan and LERO person-nel.
I The Frye Board's ruling is ren iudig31A on the question presented by this Board's February 26 Order.ll/
That ruling I
precludes this Board from making the reasonable assurance finding required under Section 50.57.
t l
t l
l l
10/
Egg Leno Island Lichtino Co.,
(Shoteham Nuclear Power Station, Unit 1), LBP-88-2 (February 1, 1988), slip op.
(
(hereafter, "LBP-88-2").
11/
The fact that LILCO has appealed LSP-88-2 has no effect on j
the validity and effectiveness of the decision.
Unless or until that decision is stayed or reversed, LBP-88-2 is the law of this case and is binding upon this Board.
,e cw6y y
ry~~,
---,--,--v-r.<-c--
- - ------ - - - - + - - - -. -, - ------- - - - - --,-
--7
-,-----e,we
+e---
---e,
.----,wr-,-,_y y
r LILCO's Proposed 25% Power Operation is Fundamentally B.
Premised on the Adequacy of the LILCO Plan and the Abilit:r of LERO to Implement it Adequately and Effsetavalv There can be no disputu that LILCO's Request.for a ?5%
power license under 10 CFR 5 50.47(c)(1) is fundaar.ttally prem-ised upon the adequacy and regulatory ccmpliance of the LILCO Plan, and upon the training and alleged capabilities of LERO personnel to implement that Plan effectively.
This LILCO posi-tion is evident from even a cursory review of LILCO's Request.
For example, in the Request L1LCO makes the folloking assertions, among others, in explaining why its Plan and LERO support the issuance of a 25% power license LILCO has developed an offsite radiolo emergency plan to satisfy, inter alia,gical the re-quiraments of 10 C.F.R. 55 50.47(b) and (c)(2).
A response organisation, LERO, has been put in place and fully trained to implement this Plan.
These measures, following extensive litigation and appellate review, have been found, with few i
exceptions, to satisfy the Commission's regula-j tions.
i Request at 11.
Similarly, LILCO alleges that:
(The LILCO Plan) provides for realistic and eff.ective response at the local level to any i
radiological ancident, even absent County or l
New York State participation in the planning effort.
Id. at 13-14.
And, with specific reference to LERO, LILCO asserts as follows:
l To implement the Plan, LILCO established LERO.
(Members of LERO) have been highly j
i trained and drilled to enable them to carry out the various roles and responsibilities outlined in the Plan.
Implementing procedurea are in place delineating all response activities at r
the local level in reaction to any incident at the plant, regardless of severity.
The Plan provides for its continued maintenance and for i
i rigorous training of LERO personnel in the tasks necessary to implement the Plan.
l t
t
- 14. at 14.
r In addition, LILCO premises its 25% power Request on several specific previsions of the LILCO Plan, and several specific functions and actions, which allegedly could and would be imple-mented or performed, effectively, by LERO personnel in the event of a shoreham emergency.
For example, in the Request, LILCO asserts:
(Under the LILCO Plan) LERO develops protective l
action recommendations that will minimize the potential dose to the public.
These recommen-dations are promptly transmitted to the public j
via a system that includos 89 sirens located throughout the EP2, and Emergency Broadcast t
System and tone alert radion.
- 11. at 14-15.
With respect to evacuation, LILCO alleges:
If protective action secommendations include evacuation of all or a portion of the 10-mile i
EPE, extensive resources are committed.
LERO i
can put in place 165 traffic guides to assist I
the flow of traffic encording to predetermined I
strategies.
I 1
I
- 14. at 15.
In addition, according to LILCO:
Three hundred thirty-three.
(LERO-driven) l buses [would) run routes throughout the EPZ to evacuate those residents who do not have their i
own method of transportation.
In case of
(
_9_
f
-V 9
a highway accident or other impediment to evacuation traffic, LERO has trained LERO route spotters to locate the problem and road crews to remove the impediment.
14 On the subject of communicating emergency information to the public, LILCO asserts that:
To keep the public informed of the emergency status, Shoreham and LERO operate an Emergency News Center with facilities for hundreos of media and related personnel.
Thio Center has direct lipas to the LERO Emergency Operations Center so that the latest information can be provided to the public.
Id. at 16.
LILCO's conclusions are particularly revealing.
It asserts thatt LERO, usino the Plan, is canable of croviding adeauate eersonnel and eauimment to assure the health and,3afety of the oublic.
(14. (emphasis added)), and that (T]he extensive litigation to date plainly shows thtt the Plan, imolemented by LERO, aives reasonable assurance that adecuate erotective maast res can and will be taken in the event of a rac iolonical emeroency at Shoreham.
Id. at 17-18 (emphasis.added).
Not only does LILCO's initial 25% power Request rely upon the LILCO Plan and LERO as one of two fundamental premises for the Request, but LILCO's subsequent filings have reiterated that reliance.
For example, on November 6, 1987, LILCO stated.
LILCO argues that operation at 25% power E2 poled with the emercancy elan submitted and stuffed by LILCO, will provide ade,qqate protec-tion of public health and safety. W Similarly, on November 16, 1987, LILCO stated:
In LILCO's original motion for approval to operate at 254, two actions are described which, "(t]aken tognther with the present licensing status of Shoreham, permit the requisite finding to be made.
authorizing operation at power levels up to 25%."
Request at 10.
These "commensatine actions" are the gxistence of a LILCO-soonsored emercen E 91AR and the oceration of the olant at 25% cower.
LILCO's motion clearly proposes that these actions bw "taken tocethel" to demonstrate the necessary interim compensating action.
It is therefore irrelevant to LILCO's Motion to discuss whether operation at 25%, standing alone, is sufficient to compensation action.11/ constitute an interim 1
It is therefore clear beyond any question that a fundamental basis of LILCO's Request is the alleged adequacy of the LILCO Plan and the alleged capabilities of LERO to implement it.
As discussed below, the Frye Board's decision rejected in its entirety this basis of the LILCO Request.
C.
The Prve Board Reiected LILCO's Premises i
The Frye Board found every one of the LILCO assertions cuoted above to be merities.14 In light of the Frye Board's face.ual findings and legal conclusions, made following a lengthy 12/
LILCO's B tef on 25% Power Qtiestiens (Nov. 6, 1987) at 8 (emphasis adde ).
11/
LILCO's Reply Brief on 25% Power Questions (Nov. 16, 1987) at 11 (ellipses in original; emphasis added)..
i and detailed evidentiary hearing, this Board clearly cannot make j
the reasonable assurance finding required by 10 CFR S 50.57 with l
respect to LILCO's 25% power Request, premised as it is upon the alleged adequacy of the LILCO Plan and of LERO.
)
]
The Frye Board found several "fundamental flaws" in LILcO's Plan and in LERO's ability to implement it, based upon the LILCO l
{
and LERO demonstrations and performances during the 1986 Exer-cj9e.
The Board defined a "fundamental flaw" as a "condition ()
I in which there is a lack of reasonable assurance that the public 4
r can be protected" (which it described as "a situation which the 1
{
Commission is chartered to prevent").
LBP-88-2 at 9.
Thus, the i
Board found the "threshold test" of a fundamental flaw to be:
If 1
j the Exercise had been a real emergency, would the alleged "flaw" i
have substantially affected the health and safety of the public?
j LBP-88-2 at 8, 10.
In addition, the Board found that to be a fundamental flaw, "the failure demonstrated by the exercise must be pervasive as opposed to a minor or Ad 1122 problem."
LBP-88-2 at 10.
Given the Frye Board's definition of a fundamental flaw, the 4
)
fact that the Board found several such flaws in the LILCO Plan l
prohibits this Board from making the teat.onabic assurance firding required to grant LILCO's 25% power Request.
We describe below some of the fundamental flaws identified h;* the Frye Board; it is clear that they directly impact -- by f l a t iv r e d e 'lilla -- the claims about the LILCO Plan and the abilities of LEAO upon which LILCO's 25% power Request is premised. <-
The Frye Board concluded, in general, that there are several fundamental flaws in the LILCO Plant I
I Although we found flaws related to prompt dis-patch of Traffic Guides and training, the great bulk of these flaws relate to communications.
~
Breakdowns in communications occurred within LERO as well as between LERO/LILCO on the one hand and the puolic and media on the otner.
l Errors occurred not only with respect to pro-cedures, but also with respect to the substance L
of the information transmitted.
Confusing and conflicting information was furnished to the public, and erroneous information to the media.
It is clear that much needs to be accomplished l
if these problems are te 'ae overcome.
l LB?-88-2 at 3-4.
I.. discussing the communications-related flaws revealed by i
LILCO's attempted but inedequate response to a roadway impedi-
{
ment, the Board held:
I these inadequacies demonstrate a fundamental
{
flaw.
Further, the fundamental flaw involved l
is.
. a flaw in the Plan itself, revealed in l
the implementation but not simply engendered by l
it.
Id. at 50.
The trye soard reversed the qualified approval that
[
the OL-3 Board had previously given to the communications scheme in LILCO's Plan (in 1985), stating as follows:
i (The OL-3] soard gave the Plan its qualified i
approval, an approval based on inherent assump-t tions that traffic guides need only carry out j
preplanned actions, that "problem-solving" t
would not be required, and that ad hoc re-spnses were not called for.
Clearly the Exer-cise, with its accompanying free-play messages, indicated that a response to an emergency-within-an-emergency was in fact a natural requirement for an adequare plan.
In short,,
the OL-3 Beard's approval was based on an assemption which the exercise proved untenable.
And, as that Board clearly implied, if one accepts the "free play" conditions of the exercise (and in deference to FEMA's standard practice we do) the communication system in LILCO's plan is fundamentally flawed in that it inherently hampers response to unexpected
' events.
Id. at $2-53.
The Board found further:
a (W)hatever steps LILCO took during the six months following the exercise to fix the prob-lems noted by FEMA.
the fixes did not succeed in curing the fundamental flaw in the Plan, viz. the deficient communication struc-ture and procedures.
t I
It may be difficult for LILCO to cure this fundamental flaw because of the training and experience of the personnel used to implement a
the Plan.
As emergency workers, LILCO person-i nel are amateurs; this fact may be the root cause of the communication problems.
4 (I)t is questionable whether utility personnel 1
can ever achieve the level of performance that professional emergency workers, such as the 3
police, display.
Id. at 63.
In discussing the LILCO Plan's provisions for traffic assis-i j
tance during an evacuation, tha Board found:
Clearly, large numbers of (Traffic Control Posts) were not staffed until well after traf-j fic congestion would have occur"ed.
Conse-quently, a controlled evacuatio:. would probably l
not have been achieved.
We agree with FEMA that a deficiency should be assessed, and conclude that LERO's perfot-ance demonstrates a fundamental flaw.
t
- 14. at 86.
i
- 14 a e
=.
i le The Board also found fundamental flaws in the LILCO Plan and in LERO's demonstrated abilities with respect to providing emer-gency information and protective action recommendatinns to the l
public and to the media.
Thus, the Board held that "confusing and conflicting information was promulgated during the Exercise."
Id. at 170.
In addition to concluding that such finding "brings l
the (It
?ID's conclusion that an excess evacuation could occur, into play (because)
. a controlled evacuation, which is required by the Plan, probably could not be achieved," the
)
Board also held as follows:
1 Aside from the requirement that a contcolled l
evacuation be achieved, we have concluded that the weaknesses in the public information pro-gram demonstrate a fundamental flaw in LERQ'1 canability to communicate emeroency information and erotective action recommendations to the l
nublic.
i l
- 14. at 170-71, and n.48 (emphasis added).
Finally, the Board found the LILCO Plan's tr44ning program fo LERO personnel to be fundamentally flawed.
The.oard found that the LERO training had been inadequate and ineffective, and it found seriously deficient the performance of LERO personnel in attempting to implement the LILCO Plan and otherwise respond to the emergency simulated during the Exercise.
For example, the Board stated that in addition to the fun (0,-
mental plan flaw arising out of the "vertical communications chain called for by the Plan," "LERO personnel were not ade-.
_______e-.
ew- - Cvw
- ~ - - * ' " " - ~ " "
I quately trained in emergancy decision-makino and communication."
Id. at 180.
The Board held:
We conclude that the training of LERO personnel
[
in responding to unanticipated and unrehearsed events, in communicating information about such events, in analyzing the kind of equiptaant 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 long chain of communication and in part f rom inade-quate training.
We believa that LILCO must significantly expand and improve its training i
program in communications before there can be i
reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham emergency.
i
- 14. at 183-84.
The Bosed concluded as follows:
i (T]hn training program as conducted before and i
since the Exercive has failed to teach LERO personnel how to communicate emergency informa-l j
tion effectivr'
}
Because tha cr.4.equences of poor communication l
l during the Exerciss resulted in a finding of a t
)
Deficiency by FEMA and a Fundamental Flaw by
(
l us, and because we agree with Suffolk's wit-l 2
nesses that timely and accurate communications provide the backbone of a successful emergency i
response, we conclude that LILCO's training i
program is fundamentally flawed in the area of i
4 communications.
i l
i li. wt 216-17.
i Similarly, with respect to the ability of LERO personnel to l
r
)
implement the LILCO Plan, the Board founds i
l (T]he proportion of LERO workers observed i
j failing to follow tt.e Plan or procedures was i
I t
' (
)
r t'
disturbingly great.
These failures occurred frequently enough to suggest that there is, indeed, a pervasive problem in training LERO workers to follow the Plan.
We conclude, therefore, that
. LILCO's training program has not adequately trained LERO personnel to follow the LILCO Plan and procedures.
Id. at 194.11/
With respect to the ability of LERO workers to deal with unanticipated events that would arise during an emergency, the Board found that:
LERO workers are not adequately trained to une independent and good judgment in response to unanticipated events.
LILCO itself admits that its training program is intended to teach LERO workers to implement the Plan and not to make ad has decisions during an emergsney.
We are convinced, however, that situations would arise during a radiological emergency at SNPS that could be dealt with effectively only if the emergency workers are able to make good, inde-pendent judgments and ad h22 decisions.
- 14. at 224.
li/
The Board provided the following illustration:
To illustrate the point, FtMA observed eight bus drivers for the general population, of which three either got lost or missed part of their route.
Tr. 8547-48.
Thus approximately 37 percent of the sample of eight failed to carry out their function properly.
If the eight observed by FEMA were truly a repre-sentative sample of the total of 333 general population bus drivers who were mobilized during the Exercise, then one might expect 37 percent of 333 bus drivers, or approximately 125, to fail to carry out their function properly.
LBP-88-2 at 194, n.50.
l The Board's overall conclusion with respect to the funda-
+
mental flaws in LILCO's LERO training program was the following:
Deficiencies in the following areas, which are sienificant to the at_lity of LERO to immlement s
the LILCO plan, were found durina the Exercise and were not demonstrated to have been commen-sated for or corrected:
(1) training for, and execution of internal i
communications within the LERO command struc-i ture and between that structure and field l
I l
personnel in response to unexpected events; (2) basic knowledge of Traffic Guides and aus Drivers of their assigned functions; and (3) training for timely and prompt response of Traffic Guides, aus Drivers, Route Spotters, j
and Road Crews in the performance of their i
emergency tasks.
d These deficiencies in LILCO's training program preclude a findi' g of reasonable assurance that i
adequate protective messures can and will be 4
taken in the event of a radiological emergency at SNPS and therefore constitute a fundamental flaw in the Plan.
i i
i l
Id. at 250-51 (emphasis added).
f 1
i t
D.
The Frye Board's Decision Precludes this Board
[
from Finding Reasonable Assurance as Required i
j gadgI Section 50.57 I
{
In its January 7 Order, this Board held that the 25% power j
license sought by LILCO "can issue only if its issuance, the i
i i
l operation of the facility, and the activities authorized will all i
give reasonable assurance of the protection of health.and safety l
and compliance with the regulations."
January 7 Order at 9.
l i,
i I
l
)
I Similarly, in its February 26 Order, the Board again focused on the reasonable assurance finding required by Section 50.57 in seeking briefs on the impact of emergency planning issues on that 1
required finding.
The Frye Board's February 1 Initial Decision I
is Igg iudicata on that subject.
LILCO's 25% power Request is fundamentally premised upon the alleged adequacy of the LILCO Plan and the alleged ability of I
LERO to properly and effectively implement that Plan.
The Frye l
Board's findings (1) that the Plan is fundamentally flawed, (2) that LERO is not capable of impismenting it, and (3) that i
each one of the many flaws in the Plan precludss a reasonable i
assurance finding, are controlling and binding on this Board.
.This "outstanding" emergency olanning issue -- that LILCO's Plan and its LERO organization are fundamentally flawed --
requires the denial of LlLCO's 25% power Request.
This Board cannot make the required Section 50.57 finding of reasonable assurance that the public health and safety will be adequately t
I
{
protected.
(
s III. LILCO'S FAILURE TO COMPLY WITH THE APPENDIX E EXERCISE REQUIREMENTS PRECLUDES THE REGULATORY COMPLIANCE FINDING a n inen UNDER SECTION 50.57 4
This Board is also precluded from making the regulatory i
compliance finding required under Section 50.57, because LILCO has failed to comply with the full participation exercise re-4 l
quirements of 10 CFR Part 50, Appendix E, S IV.F.
i l
i i
n
A.
Appendix E R g ires a Full Participation Exercise Prior to Issuance of Any License to Operate Above St Power Appendix E is explicit in requiring a full participation exercise orier to the issuance of any license to coerate above 54 poWar:
Afullparticipationd/exercisewhichtestsas much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be con-ducted for each si,te at which a power reactor is located for which the first operating Aicense for that site is issued after Jul, 13, 1982.
This exercise shall be conducted within two vsars before the issuance of the first coeratina license for full oower fone author-irino coeration above 5% of rated oower) of the 3
i first reactor.
.ll/
By the plain terms of Appendix E, no 25% cower license can be issued to LILCO unless there has been a full carticioation exgt-cise conducted within two vears before the license is issued.
i 15/
10 CFR Part 50. Appendix E,Section IV.F.1 (emphasis added).
Footnote 4 states i
"Full participation" when used in conjunction with emergency preparedness exercises for a particular site means appropriate offsite local and State authorities and licensee personnel phycically and actively take part in testing l
their integrated capability to adequately assess and respond to an accident at a com-mercial nuclear power plant.
"Full partici-1 pation" includes testing the major observable portions of the onsite and offsite emergency plans and mobilization of State, local and i
licensee personnel and other resources in sufficient numbers to verify the capability to respond to the accident scenario.
! i
B.
LILCO Bas Not Complied with the Appendix E Exercise Recuirement i
The Shoreham Exercise conducted in February, 1986 clearly does not satisfy this Appendix E requiremeint.
First, it took place more than two years ago, and therefore cannot qualify as the full participation exercise required by Appendix E.
- Second, in its December 7, 1987 Partial Initial Decision (LBP-87-32), the Frye Board held that LILCO's 1986 Exercise failed to comply with the full participation exercise requirement in 10 CFR Part 50, Appendix E.li/
Under the express terms of Appendix E, this Board cannot issue LILCO a license to operate Shoreham at up to 25% power I
unitas and until LILCO conducts a full participation exercise which fully complies with Appendix E.
Accordingly, the Board
]
must deny LILCO's 25% power Request because it cannot make the regwlatory compliance finding required by Section 50.57.
1 11/
Egg Lone Island Lichtine Co. (Shoreham Nuclear Power Sta-tion, Unit 1), LBP-87-32 (December 7, 1987) (hereafter, "LBP 32").
The fact that LILCO has appealed LBP-87-32 has no effect j
on the validity and effectiveness of the decision.
Unless or until that decision is stayed or reversed, LBP-87-32 is the law of this case and is binding upon this Board.
The Frye Ecard's decision in LBP-87-32 was based on the failure to test certain essential emergency planning functions during the 1986 exerciser it was agi based on the lack of parti-i cipation by New York State and Suffolk County.
Accordingly, the November, 1987 amendment adding a new paragraph 6 to Section IV.T of Appendix E -- which eliminated the requirement for govern-mental participation in exercises if the "applicant has identi-fled those governmente as refusing to participate further in emergency planning activities, pursuant to 10 CFR 50.47(c)(1)"
is irrelevant, and has no impact on the validity and binding nature of the Frye Scard's decision.,
a 1
4 Section 50.47(c)(1) Provides No Means for Avoiding C.
Ca=aliance with Annandir E a
LILCO's 25% power Request proceeds under 10 CFR 1
)
$ 50.47(c)(1).
By its terms, that section provides a mechanism i
for obtaining a license in the absence of full compliance with the requirements of submart (b) of section 50.47 Section 50.47(c)(1) does nat excuse a failure to comply with the separate requirements of Part 50, Appendix E.
Accord'ingly,Section I
50.47(c)(1) provides no avenue to obtain an exemption from the
)
requirement of such compliance prior to issuance of a license to i
l operate above 5% power.
I i
LILCO itself has recognized that Section 50.47(c)(1) 1 l
provides no basis for relief from compliance with Appendix E
\\
j requirements.
In early 1987, LILCO feared that its 1986 Exercise i
would not enable it to comply with Appendix 2 because more than r
l one year would pass between the Exercise and a licensing deci-i I
sion.ll/
Therefore, LILCO filed, cursuant to 10 crR E 50.12fa),
i L
a request for an exemption from the one year from license issu-
[
I ance exercise requirement in Appendix E.18/
(
)
LILCO's acknowledgement that the appropriate avenue to obtain relief from Appendix E non-compliance is by way of an
[
exemption under Section 50.12 is not surprising.
In the Shearen j
11/
In early 1987, Appendix E, 5 IV.F.1 required the full parti-cipation exercise to occur within one year of licensing.
In May 1987 the regulation was changed to include the present two-year requirement.
52 Fed. Reg. 16,823 (19??).
18/
Egg Licensee's Request for Exemption from 10 C.F.R. Part 50, Appendix E (Jan. 22, 1987).
4 a
22 -
Harris case, the. Commission considered relief from Appendix E non-compliance under Section 50.12.19/
Similarly, in the Perry proceeding, Appendix E non-compliance was also considered under Section 50.12.22/
These decisions merely emphasize what the regulations already make clear Section 50.4"(c)(1) is a21 the proper avenue for seeking an exemption from compliance with Appendix E.21/
Furthermore, in recently amending Section 50.47(c)(1) and Appendix E, the Commission reiterated four times i ts intention to have subpart (c)(1) address 2nly non-compliance with the require-ments in subpart (b):
' Failure to meet the aoolicable standards set forth in caracraoh (b) of this section may result in the Commission declining to issue an operating license.
"Where an applicant asserts that ist inability to demonstrate comoliance with the reauirements of oaracraoh (b) of this section results wholly or substantially from the deci-sion of state and/or local governments not to participate.
19/
Ett parolina Power & Licht Co. (Shearen Harris Nucler
~ower Plant), CLI-86-24, 24 NRC 769 (1986).
20/
Egg Cleveland Elec. Illuminatina Co. (Perry Nuclear Power Plant, Unit 1), Docket No. 50-440, Exemption (Nov. 6, 1986).
21/
This Board's January 7 ruling that LILCO could pursue its 25% power Request ur:dar Section 50.47(c)(1) without seeking an exemption never addressed the issue of LILCO's non-compliance with Appendix E.
Ett January 7 Order at 6.
That ruling merely decided that LILCO could attempt to ccmply with tha requirements of Section 50.47(c)(1) using its technical risk arguments.
It is clear from Secticn 50.47(c)(1) itself and the precedents cited in the text that Section 50.47(c)(1) cannot be used to attempt to get around Appendix E nen-compliance.
Section 50.12 is the proper course.
23 -
i l
"(i) The applicant's inability to conniv with the reauirements of naraaraoh (b) of thig i
j e is wholly or substantially the result t
of non-participation.
I "In addressing the circumstance where nppli-cant's inability to comniv with the reauire-ments of maraarach (b) of this section is wholly or substantially the result of non-j participation.
l 52 Fed. Reg. 42085-86 (November 3, 1987) (emphasis added).
Nowhere is it suggested, in the rule text or elsewhere, that the a
j commission intended the.smended subpart (c)(1) to deal with non-1 compliance with any requirements other than those in subpart (b) of Section 50.47.
q Moreover, a comparison of the new rule as proposed for pub-i
)
lic comment with the rule as adopted provides further evidence i
that the Commission decided to limit the applicability of the 4
amended subpart (c)(1) to non-compliance with subpart (b) and to exclude non-compliance with the requirements of Appendix E.
As originally proposed, the Section 50.47 amendment was to consist of a new subpart (e) to read, in pertinent part, as follows:
(e)
The Commission may issue a full Mwer ope:ating license for a facility netvlth-standine non-comoliance with other reauirements of this section and 10 CFR Part 50 Annandir E is sic] non-compliance arises substantially from a lack of participation in emergency planning by a State or local governme.it, and if the applicant demonstrates to the Commission's satisfaction that
j l
1 i
1 52 Fed. Reg. 6981 (March 6, 1987) (emphasis added).
Prior to adoption of the final version of the amendment, however, the Commission obviously decided to abandon the broad provision (covering Appendix E and all of Section 50.47) that it had origi-1 nally proposed.
Instead, the Commission decided to maintain the original structure of subpart (c)(1) by having its new version of that subpart apply only to non-compliance with provisions of I
subpart (b) of Section 50.47, just as it always had.
Thus, the Commission removed from the adopted version of the amendment
[
references to "other requirements" of Section 50.47 and to i
Appendix E, except for the addition of the new paragraph 6 to Appendix E,Section IV.F.
13.t 52 Fed. Reg. 42,086 (November 3, 1987).
I This additional "outstanding" emergency planning issue --
l LILCO's non-compliance with the full participation exercise requirement of Appendix E -- precludes the reasonable assurance of regulatory compliance finding which, under Section 50.57, is a prerequisite to the granting of LILCO's 25% power Request.
4 IV.
PENDING EMERGENCY PLANNING CONTENTIONS ARE RELEVANT TO, AND PRECLUDE. A anerutgaLE ASSURANCE FINDING UNDER SECTION 50. 57 i
In addition to the two dispositive reasons alrea4 discussed which require the denial of LILCO's 25% power Request, the Gov-i ernments' pending emergency planning contantions are directly f
relevant to LILCO's proposed 25% power operation of Shoreham.
l t
The existence of these outstanding contentions also precludes the i
reasonable assurance findirs required under Sectica 50,57.
)
I
i I
r I
A.
The Pending Contentions l
For same of reference, the Governments list below the emer-3 i
gency planning contentions which remain outstanding and preclude l
l the reasonable assurance finding required for issuance of a 25%
power license.
[
Leaal Authority contentions 1, 2, 4-8 and 10:
LILCO lacks the legal authority to implement l
the following emergency response functions set i
forth in the LILCO Plan, and there is no rea-sonable assurance that LILCO's Plan, even with l
the "best efforts" of the State and County I
governments, could or would be implemented or would satisfy the regulatory requirements concerning the following functions:
l contention 1 -- directing traffic, establishing prescribed evacuation routes, and implementing i
an evacuation; contention 2 -- blocking roadways, establishin I
one-way roads, and implementing an evacuation;g i
t contention 4 -- removing road obstructions and towing vehicles in implementing an evacuation; i
i contention 5 -- activating sirents, activating an EBS, and directing the broadcast and deter-mining the content of EBS messages; l
contention 6 -- deciding upon and making deci-l sions and official recommendations to the public on appropriate protective actions to i
protect public health and safety, and exer-cising command and control, and managing and j
coordinating, the entire emergency response; contention 7 -- determining, informing the public, and implementing protective action recommendations for the 50-mile ingestion
}
pathway EPZ; l
t contention 8 -- initiation, ccmmand and con-i trol, and implementation of short-term and I
long-tsrm recovery and reentry processes; I
Contention 10 -- establishing and maintaining EPE perimeter and access control, access con-trol to evacuated areas, and traffic control in 1
areas around relocation centers.
l l
EBS Contention i
LILCO's new provisions for radio transmission of ESS messages and other emergency informa-tion, and for activation of tone a:,ert radios and receivers installed at secondary EBS sta-tions, are inadequate and the LILCO Plan fails to comply with 10 CFR $$ 50.4'(a)(1), (b)(5) and (b)(6), 10 CFR Part 50, Appendia E, 55 IV.D.2 and 3, and NUREG 0654 $$ II.E.5 and t
l E.6 and Appendix 3.
1 l
Role Conflict and Frenamed Prota. Tve Actions 4
]
for School Children -- Contention 25.C e
i LILCO cannot implement the proposed protective actions of early dismissal and evacuation of school children, as set forth in the LILCO i
Plan, safely, effectively, or in compliance i
with regulatory requirements, because a sub-stankial number of the school bus drivers, who LILCO assumes will implement such early dismis-sals and evacuations, will attend to the safety
}
of their own families and therefore will not be available to implement LILCO's proposed protec-
}
tive actions for school children.
Recention Centers and Monitori',_gnd Decontamination of Evacueen LILCO's proposed reception centers are unavail-l able and inadequat@ for their intended purpose; LILCO's proposed procedures for directing a
l evacuees to reception centers cannot be safely i
or effectively implemented and they fail to 1
comply with regulatory requirements: LILCO's j
proposed procedures for providing radiological monitoring and decontamination to evacuees are inadequate, unworkable and fail to comply with i
regulatory requirements.
i l
Evacuacion of Hosoital Pa_tiegig LILCO's proposed ad hoc evacuation of hospital patients is inadequate, unworkable, and fails to ecmply with regulatory requirements.
B.
Tht Outstanding Contentions are Relevant to L
LILco'n 25% Power Operation Proposal i
Even a cursory review of LILCO's 25% power Requent and the pending contentions reveals that those contentione raise issues 1
l which are directly relevant to LILCO's proposed operation of l
Shoreham at 25% power.
Three reasons make thir conclusion unavoide.ble, even without an analysis of the validity of LILCo's technical allegations about the nature and risks of its proposed 25% power operation.
First, LILCO's Request is plainly premised upon the exis-i tence and adequacy of its Plan and the ability of its LERO organization to implement that Plan, recardless of the size _of the area, or the number of Suffolk County citizens which micht i
gJtiniatelv be involved in an ectual emeroency resoonse.
For this i
reason, the contentions -- which allego that the Plan fails to i
provide reasonable assurance that adequate protective measures can and will be taken, that the Plan cannot be implemented, and that the Flan fails to comply with the regulatiens -- are clearly relevant.
We discuss this in Section (1) below.
Second, in its Request LILCO acknowledges that in an emer-gency at 25% power, most if not all the functions and LILCO Plan provisions at issue in the pending contentions would or could be necessary.
We discuss this in Section (2) below.
Third, most of the pending contentions allege non-ccmpliance with 10 CFR Part 50, Appendix E.
As noted above, Section 50.47(c)(1), upon which LILCO's 25% power Request is based, provides no avenue for avoiding compliar:e with the requirsments of Appendix.E.
Accordingly, the pending contentions which allege non-compliance with Appendix E are directly relevant to the reasonable assurance of regulatory compliance finding required under Section 50.57.
This Board cannot make such a finding until those contenticas have been resolved.
(1)
The Pending Contentions are Relevant Because They Raise Issues about the LILCO Plan which is the Premise of the LILCO Recuest
.As demonstrated in Section II above, LILCO's 25% power Request is fundamentally premised on the alleged adequacy and regulatory compliance of the LILCO Plan for the ent, ire 10-mile EPZ, and on the alleged ability of LERO to implement that Plan for that entire area.22/
For this reason alone, this Board may 22/
Although LILCO does argue that planning for the entire 10-mile EPZ is conservative for 25% power operation (ggg, 12g2, Request at 87-88),
LILCO nonetheless asserts in its Request that it "does not seek to reduce the EPZ" for its operations at 25%
power, that it does not intend "to reduce the degree of emergency planning now in place during 25% power operation," and that it "proposes no reduction in the EPZ, to the Plan or to LERO."
Request at 84, 87.
LILCO repeated these assertions in November 1987.
Egg LILCO's Reply Brief on 25% Power Questions, Nov. 16, 1987 at 10.
As explained in Section I above, the Governments are not yet in a position to address the substance or technical merits of LILCO's assertion that no preparedness would be necessary throughout most of the 10-mile EP2.
Significantly, 2
however, the Commiesion has already reached the generic con-clusion that planning for a 10-mile area la required for any operation above 5% power.
Egg, gis2, 10 CFR S 50.47, and dis-cussion of 10 CFR Part 50, Appendix E, S IV.F.1 above.
Egg also note 24 below. -
not grant LILCO's 25% power request until the pending contentions have been resolved.
Because those contentions allege that LILCO's Plan (1) does not provide reasonable assurance that adequate protective measures can and will be taken, and (2) does not comply with regulatory requi:ements, this Board is precluded from making the reasonable assurance findings required under Section 50.57.
l (2)
LILCO Acknowledges that the Punctions Challenged in the Pending Contentions Would or Could Be Necessary._co Respond to an r==raency at 25% Power Throughout its Request, LILCO asserts that at 25% power an 1
emergency response would probably be unnecessary except within a one or two mile radius of the plant.
Ett, tigt, Request at 87-88, 97.11/
Nevertheless, LILCO is forced to concede the obvious:
in a Shoreham emergency, even at 25% power and even assuming Alguendo the risk reductions asserted by LILCO, all the basic elements of an emergency response would or could still be required.
And, this is true even if it is assumed that such a j
respcase would be necessary for an area smaller than the 10-mile EP2, or for less than the entire EPZ population.11/
11/
The Governments will submit contentions and evidence, as appropriate, to contest this assertion after they have had an opportunity to conduct the necessary discovery and analyses of i
the technical merits of LILCO's Request and the Staff's review of
(
the Request.
11/
The Governments emphasize that they do not agree that any lessening in offsite preparedness during 25% power operation would be consistent with the NRC's regulations.
To the contrary, the NRC has emphasized that even if an emergency were to cause no significant offsi:e consequences (Lig2, even if the most far-(footnote continued) l _
I
1 specifically, LILCO acknowledges that at least the following t
elements of an emergency response -- which are set forth in the LILc0 Plan and are the subject of the Governments' pending con-1 j
tentions -- could or would be required in the event of a shoreham emergency at 254 powers
}
notification by LILCO of the State and County l
(Request at 91);
1 i
a decision to alert the public (ida at 93);
a decision whether to activate the 89 sirens installed in the EPZ (ida at 92, 93);
a decision to activate an EBS system, and the broadcasting of emergency information and protective action recommendations over that system (11s at 92-93);
decisions on whether, when, and how to advise the public to shelter or to evacuate (ida at 93);
(footnote continued from previous page) reaching of the assertions in LILCO's Request Nere accepted),
there must still be assurance that there is offhtte preparedness and an implementable plan The ITMT) accident also sl owed clearly that
.4e conditions and actions, even if thav do e
noe cause sianificant effaite radioloaical consequences, will affect tho way the various State and local entities react to protect the public from any dangers associated with the at:ident.
In order to discharge 6*fectively its statutory responsibilities, tha_,cemmisal a t
must know that nroner means and neoeniggg3 sgtg in niace to anness the course of an acciaant and its notential neverity, that NRC and other annronriate authorition and the nublic will be notified oremntiv, and that adeauate erotective actions in renconne to actual or anticiented E2nditions can and will be taken.
45 Fed. Reg. 55,403 (August 19, 1980) (emphasis added).
This Cc= mission statement further underscores the relevance of the Governments' pending contentions to LILCO's 25% power Request..
an evacuation of the 20,000 people located in the five tones (A-E) located within two miles of the plant (ida at 88, 96);
mobilisation of 53 LERO traffic guides to "guide" traffic, man traffic control po,sts, block roadways, erect barriers on roadways, and remove obstructions on roadways (idt at 91-92);
evacuation of six schools located within two miles of the plant, by means of 33 buses (ida at 100);
evacuation of the transit-dependent population within two miles of the plant by means of 36 LERO-driven buses (idt at 102);
L access control by LERO traffic guides (ida at 94);
i activation and staffing of reception centers i
(ida at 96-97);
t direction of up to 20,000 people in zonas A-E l
to LILCO's proposed Roslyn reception center, i
and possibly some to the proposed Nicksville or Bellmore centers (idu at 96);
traffic control associated with evacuation i
travel and arrival of evacuees at reception centers (idt at 97); and i
activation of congregate care centers for roughly 4000 evacuees from zones A-E (Liz at 98).
A comparison of the functions conceded by LILCO to be poten-tially necessary to respond to a 25% power emergency, with the
{
functions which are the subject of the pending emergency planning contentions, makes manifest the relevance of those contentions to f
LILCO's proposed 25% power operation.
l Moreover, LILCO's concession is not surprising.
Common sense and logic dictate the conclusion that in any radiolegical 1
i i
l -
i
emergency:
the public will naed to be alerted; the.e will have to be some communication of emergency informations and seme decisions will have to be made about whether protective actions are necessary and af so, which ones.
Siullarly, if tag evacua-l l
tion is recommended, there will need to be traffic control, f
access control, provision for school children and others without t
their own means of transportation, assistance for evacuees (such as monitoring, decontamination, and shelter advice), and decisions about recovery and reentry.
i It may be an interesting exercise to engage in technical debates about the actual nuchar or location of the people for I
whom protective action decisions would have to be considered or r
made, or about how many people would actually have to be evacu-f ated, in the event of an emergency assuming a power level of 25%.
t However, there is no need to engage in such debates in order to 1
determine whether the outstanding contentions are relevant to LILCO's proposed operation of Shoreham.
There is simply no basis
{
for suggesting that even at 25% power, the most fundamental decision-making and communication functions addressed in th2
(
pending contentions would not come into play, or tnat sc=e amount of the protective and evacuation-rela *.ed activities addressed in I
those pending contentions could not also be required.
- Clearly,
[
i i
25/
As the Board itself acknowledged, "the ' relevance test' fer contentions expressed in 50.57(c) is much less ricerogi than the i
'not significant' test of 50.47(c)."
January 7 Order at 7 (emphasis added).
4 f l
~
t i
the pending emergency planning contentions are relevant to i
LILCO's proposed 254 power operation.11/
(3)
The Non-Compliance with Appendia E Alleged in the Pending Contentione I6 Relevant to the i
Findinas Raouired to Imatte a 254 Power Licenza l
?
I I
Finally, a review of the Governments' pending contentions i
l reveals that most of them allege that LIT,40's Plan fails to j
comply with requirements of Part 50 Appendix E.
As discussed in i
\\
Section III above, Section 50.47(c)(1) provides no exemption feca compliance with Appendix E, and no mechanism for arguing that such non-compliance is "insignificant" or excused.
This Board held in its January 7 Order, however, that Section 50.57 requires a finding of reasonable assurance of rsgulatory compliance prior to issuance of a 254 power license. The Board cannot make such a
[
I l
finding, with respect to compliance with Appendix E, prior to resolution of the pending contentions.
For this additional
(
reason, then, the pending contentions are relevant to LILCO'r 25%
I l
power Request.
In fact, their existence requires the denial of j
t the LILCO Request.
l I
i t
l,
1 V.
CONCLUSION Tor the foregoing reasons, this Board mt.st find that the reasonable assurance findings required by Section 50.57 cannot be made with respect to LILCO's 25% power Request, and accordingly,
]
that Request must be denied.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney l
Building 158 North County Complex l
Veteraas Memorial Highway Hauppauge, New York 11788
%%/
b Lawrence Coe Lanpber Karla J. Letscha/
KIRKPATRICK & LOCKEART 1800 M Street. N.W.
South Lobby - 9th rioor Washington, D.C.
20036-5891 Attorneys for Suffolk County f,
/
'M i
J G',L%
fl 4' <.
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Facian G. Falomino<
,e Richard J.
- ahnleuter /
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Special Counst.1 to the Governos of the Statte of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York 35 -
_ =, _ _ _ - _ _ _
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Stephen
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Twomey,jB. Latham Latham & Shsa r
P. O. Box 398 33 West Second Street i
Riverhead, New York 11901 l
Attorney for the Town of
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April 1, 1988 Southampton j
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1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Enfers the Atomic Safety and Licensina Board
)
In the Matter of
)
l
)
l LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Staulon.
)
)
Unit 1)
)
)
i CERTIFICATE OF SERVICE l
i I hereby certify that copies of GOVERNMENTS' BRIET IN RESPONSE TO i
FEBRUARY 26, 1988 BOARD ORDER have been served on the following this I
1st day of April, 1988 by U.S. mail, first class, except as other-vise noted.
James P. Gleason, Chairman Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board l
513 Gilmoure Drive U.S. Fuclear Regulatory Commission l
Silver Spring, Maryland 20901 Washington, D.C.
20555
(
i James P. Gleason, Chairman Dr. David L. Hetrick l
Atomic Safer' and Licensing Scard (Alternate Board Member) i U.S. Nuclea latory Commission U.S. Nuclear Rsgulatory Ccmmission
{
Washington, 20555 Washington, D.C.
20555 L
i Dr. Jerry R, William 3. Cumming, Esq.
Atomic Safet, Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Cmergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472
t 4
i t
Fabian G. Palomino, E q.-
W. Taylor Reveley, III, Esq.
Richard J. Sahleuter, Esq.
Nunton 6 Williams Special Counsel to the Governor P.O. Box 1535 i
Executive "hamber, Rs. 229 707 East Main Street State Capitol Richmond, Virginia 23212 l
Albany, New York 17124 I
l Joel Blau, Esq.
Anthony F. Earley, Jr., Esq.
I Director, Utllity Intervention General Counsel j
N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 r
175 East Old Country Road n
Albany, New York 12210 Nicksville, New York 11401 E. Thomas Boyle, Esq.
Ms. Elisabeth ialbbi, Clerk Suffolk County Attorney suffolk County Legislature Bldg. 158 North Councy complex Suffolk County Legislature i
Veterans Memorial Nighway Office Building Nauppauge, New York 11788 Veterans Memorial Nighway Nauppeuge, New York 11748 Mr. !..
F. Britt stephen 3. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Stataon 33 West Second Street l
North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes i
Docketing and Service Section Executive Director Office of the Secretary Shoreham Oppnents Coalition U.S. Nuclear Regulatory Comm.
l 195 East Main Str9et 1717 N Street, N.W.
i Smithtown, New York 11787 Washington, D.C.
20555 i
Alfred R. Nardelli, Esq.
Non. Patrick G. Halpin t
New York State Department of Law Suffolk County Executive l
120 Broadway, Room 3-118 N. Lee Dennison Building N0w York, New York 10271 Veterans Memorial Righway i
Hauppauge, New York 11788 MMB Tett sical Associates Dr. Monroe Schneider 1723 Ne Alton Avenue North Shore Committee Suite i P.O. Box 231 S n Jose, California 95125 Wading River. New York 11792 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.
I N;w York State Energy Office Edwin J. Reis, Esq.
t Agency Building 2 U.S. Nuclear Regulatory Cemn.
Empire State Plaza Office of General Counsel j
Albany, New York 12223 Washington, D.C.
20555 i
l I
i 1
titvid A. Brownlee, Esq.
Mr. J'tuart Diamond Kirkpatrick & Lockhart 8usiness/ Financial 1500 oliver Building NEW YORK TIMES Pittsburgh, Dennsylvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J.
Rynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay Federal Emergency Management Agency Town Hall 26 Federal Plaza Oyster Bay, New York 11771 New York, New York 10278 Adjudicatory File Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Wa3hington, D.C.
20555 i
>OY D'
/ / ii' fr(
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Karla J. Le tsche ' ' ~
r KIRKPATRICK & M KRART 1800 M StreeV, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 l
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I I
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1 41 m
4 l4 62Lil 21, 1988 UNITED STATES OF AMERICA l
NUCLCAR REGULATORY COMMISSION Before the Atomic Safety and Licensinc Board 1
l l
c l
)
I l
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
[
)
(25% Power)
(Shoreham Nuclear Power
)
Station, Unit 1)
)
(
)
i I
GOVERNMENTS' RESPONSE TO LILCO'S BRIEF ON TEE I
l RELEVANCE OF PENDING CONTE 3rfIONS TO LILCO'S 254 POtfER MDFIOtl l
1
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l Pursuant to the Board's Order of February 26, 1988, Suffolk l
l County, the State of New York and t.M Town of Southampton (the "Governments") submit this response to LILCO's Brief on the
[
"Substantive Relevance" of Remaining Emergency Planning Conten-i tions to LILCO's Motion to Operate at 25% Power (April 1, 1988)
(the "LILCO Brief").
l t
i I.
IMTRODOCTION l
l l
On April 1, 1988, the Governments submitted a briefl/ which j
t addressed the impact of the outstanding emergency planning issues l
\\
I in this case on LILCO's request for a license to operate Shoreham j
i i
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l 1/
Governments' Brief in Respor.Je to February 26, 1986 Board I
Order (April 1, 1988) (hereafter, "Governments' Initial Stief").
j I
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l o c uc e w-- a nm t C\\ y p.
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L l
4 i
at 25% of rated power.M As directed by the Board's February 26 f
f Order, the Governments' Initial Brief demonstrates that it is not necessary to consider LILCO's tecnnical assertions or 25% pcter l
Probabilistic Risk Assessment ("PRA") to determine that LILCO's i
Request must be denied.
Specifically, the Governments show that the pending emergency planning issues, including the OL-5 Board's t
two decisions adverse to LILCO and the OL-3 remand issues, ars f
relevant to LILCO's preposed 25n power operation and preclude the l
reasonable assurance finding required for the issuance of a j
license under Section 50.57.
i
'the LILCO Brief also purports to respond to the Board's j
February 26 Order requesting briefs on "the impact of pending emergency contentions on a reasonaole asaiurance Linding author-
[
ized by 10 C.F.R. 50.57tc)."
Yet, instead of addressing the issue identified by the Board -- that is, the relevance of the pending contentions on the findings required to grant LILCO's Request -- LILCO's Brief in effect admits the relevance of the pending contentions and then goes on to address their merits.
In I
other words, LILCO concedes that the pending contentions must be addressed before a reasonable assurance finding can in fact be mades but, it argues, based on its 254 power PRA and other tech-nical assertions, analyses and assumptions, the contentions should be decided in LILCO's favor and the reasonable assurance finding can be made.
2/
Sit LILCO'c "Request for Authortration to Increase Power to 25%," dated April 14, 1987 (nereafter, "LIL"O's Request" or "Request").
2-
i i
l LILCO's approach violates the Board's Orders of January 7.1/
i
.nd February 26, ignores LILCO's own pleadings, and mischarac-i terizes the record.
In particular, LILCO ignores the following f
i t
l facts:
(1) the adequacy of the LILCO Plan and the capabilities l
)
and effectiveness of LERO, which are at issue in the pending i
f j
contentions and which the OL-5 3eard has found to be l
1 t
fundamentally flawed, are a bc'.ic premise of LILCO's 25% power
[
q
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]
Requests (2) the technical bases for the 25% poter Request are j
not yet ripe for analysis and (3) the admitted relevsnee of the f
pending emergency planning contentions requires denial of LILCO's f
)
Request and the termination of this proceeding.
The flaws in LILCo's position may be summarized as follows.
l i
First, LILCO attempts to analyse the issues presented by its 25%
l power Request as if the adequacy of the LILCO Plan and the
[
effectiventos of LERO were not at issue.
LILCO's effort to evade these two issues is understandable, for the OL-5 Licinsing Board
}
l i
clearly held that both LILCO's Plan and its LERO organization are
[
fundamentally flawed.1/
This Board cannot countenance LILCO's i
l effort to avoid the consequences of the OL-5 Board's I.tA judicata f
j ruling.
It is a fundamental premise of LILCO's Request that the l
LILCO Plan is adequate and that LERO is capable of effectively i
j implementing that Plan.
The OL-5 Board's holding establishes 1
l 3/
Memorandum and Order (In R6 LILCO's Request for Authori-zation to Operate at 25% of Tull Power) (Jan.
7, 1988) j thereafter, "January 7 Order").
i/
Egg tono Island Lichtino Co. (Shoreham Nuclear Pover Sta-I tien, Unit 1). LBP-88-2 (February 1, 1988) slip op. (hereafter.
l "LBP-85-2").
1
}
l [
i 1
l that this premise is wrong, and that no reasonable assurance i
finding can be made based on the LILCO Plan or LILCO's LERO organization.
Accordingly, LILCO's 25% power Request must be denied.
The second basic flaw in LILCO's Brief is its complete reliance on technical analysis.
LILCO's reliance on its techni-cal analysis is premature and contrary to the Board's Orders.
In addressing the impact of the LILCO Request on the pending conten-tions, the Board clearly stated that it was "certain to us now that the examination of this question cannot be accomplished without some opportunity for the Government to review both LILCO's oriainal request gad the Staff's analysis thereof."l/
When LILCO submitted its Brief on April 1, 1988, LILCO knew that s
the Staff's cnalysis had not been completed and that it would not be completed in the near future.5/
Knowing the explicit Board guidelines and that a resolution of tecnnical issues was not possible, LILCO nevertheless proceeded to base its entire Brief on its technical assertions, analyses and assumptions.
In fact, LILCO even went beyond its PRA and attempted to support its Brief by a further technical analysia alluded to in the Affidavit of Edward J. Youngling (March 31, 1988) ("Youngling 1/
January 7 Order at 11 (emphasis added).
$/
Indeed, on March 9, 1988, the Staff informed all parties that it "will not be able to file a brief substantively addcessing the Board's question by Aptil 1, 1988 " because the Staff's response to the Board's February 26 inquiry "is projected to be coe.pleted in the early fall of this vear."
Egg NRC Staff Response to Board Order on Relevance of Pending Emergency Planning Contentions to operation 25 Percent Power (sic),
March 9, 1988 (hereafter, "Staff Response") (emphasis added).
_4
0 Affidavit").
As established by the Affidavit of Gregory C.
Minor and Steven C. Sholly ate. ached to this Brief ("Minor /Sholly Affidavit"), the Youngling Affidavit goes beyond the 25% power PRA by discussing an entirely new technical analysis.
There is no way to assess the validity, relevance or impact of the Youngling Affidavit or the new LILCO analyses discussed therein without first obtaining the substantial additional information and data necessary to understand and evaluate the correctness of the underlying technical analyses, judgments, assessments and conclusions.
Egg Minor /Sholly Affidavit at 116-8.
Finally, LILCO's Brief is flawed because it acknowledges the i
actual relevance of the pending emergency planning issues to its proposed 25% power operation, but nonetheless argues that its 25%
power Request should be granted.
In fact, according to the Board's orders, if the pending emergency planning issues are relevant to that Request, the Request must be denied.
Sag, gig,1, January 7 Order at 15.
II.
LILCO'S 25% POWER REQUEST IS PREMISED ON THE ADEQUACY OF LILCO'S PLAN AND THE CAPABILITY OF '.SRO TO IMPLEMENT IT EFFECTIVELY LILCO's Brief focuses complet*1y on the technical bases of LILCO's 25% power Request.
LILCO's exclusive emphasis on its j
technical arguments is seriously misleading, however, for the LILCO 25% power Request is based on 122 factors:
(1) a 25% power limitation; and (2) an adecuate Plan and an effective LERO.
LILCO's reliance on the existence of an allegedly adequate plan 5-
e and an organization allegedly capable of implementing it is significant because that reliance, in light of the pending emer-gency planning issues and Igg iudiqata decisions, is dispositive of the the Board's inquiry under its February 26 Order.
As the Governments demonstrated in their Initial Brief, from the very start of this litigation, LILCO has premised its propocal to operate Shoreham at 251 power on the alleged existence of an adequate Plan and an effective LERO.1/
For example, in its initial 25% Power Request filed with the Commission, LILCO expressly stated:
This request shows concl._ sively that LILCO's commitment to maintain Shoreham's 10 mile EPZ, its cotent and tested Local Emergency Response Organization (LERO) and the existino, alreadv liticated Local Offsite Radiolocical Snerov Resoonse Plan give reasonable assurance that adequate pretective measures can and will be taken in the event of an accident at 25% power.
LILCO Motion for Expedited Commission Consideration (April 14, 1987) at 2 (emphasis added).
LILCO's Request and subsequent pleadings are replete with instances where LILCO recognizes that if a reasonable assurance finding is to be made (which is n3cessary to grant its Request), an adequate Plan and an adequate LERO are necessary.
Many such instances are cited in the Governments' Initial Brief.
Moreover, as also noted in the Governments' Initial Brief, the LILCO Request itself concedes that the emergency response functions challenged by the pending contentions would or could be 1/
Egg Covernments' Initial Brief at 6-11.
necessary to respond to an emergency at 25% power.
- Egg, e,q.,
Governments' Initial Brief at 26-34.
LILCO's failure even to address these fundamenaal concessions is significant.
As the Governments demonstrated in their Initial Brief, the OL-5 Board's holding that the LILCO Plan and LERO are fundamentally flawed, require that LILCO's Request be denied.
III..
LILCO'S TECHNICAL ARGUMENTS ARE PREMATURE AND MUST BE DISREGARDED Having ignored its acknowledged reliance upon the existence of an adequate Plan and capable LERO, the LILCO Brief relies exclusively on the technical aspect of the LILCO Request.
Not t
only are LILCO's technical arguments an insufficient basis for l
approval of the Report, but LILCO's tecnnical arguments must be rejected at this stage because they are premature.
In addition, LILCO's Brief injects into the proceeding new technical information and issues which the other parties and the Board are in no position to address.
A.
The Board's Orders Preclude Consideration of LILCO's Technical Analyses Prior to Completion of the Staff SER and Opportunity for Discovery and Analysis by the Governments j
l LILCO bases its entire Brief on the validity of its 25%
Power PRA and the new technical analyses and conclusions refer-enced in the Youngling Affidavit.
Thus, LILCO repeats its argu-ment that risks are reduced at 25% power (LILCO Brief at 5-8),
and that operation at 25% power provides long periods of time
-7
between an onsite initiating event and an offsite releaec (LILCC Brief at 8-11).
Moreover, LILCO's analysis of the specific pending contentions is also premised completely on its tecnnical arguments and analyses.
For example, as to the pending traffic control contention, LILCO contends that "given the extended time between the initiating event and the release of radiation for accidents at 25% power, the necessary mobilization and coordination could be easily accomplished." (LILCO Brief at 14).8/
The purported increase in response time to a 25% power accident is also used to support an argument that, at 25% power, there is enough time for appropriate protective action recommendations to be made (LILCO Brief at 16); and that sufficient time is available to activate the New York State EBS (LILCO Brief at 21).
Similarly, LILCO contends that the reduced area of evacuation for a 25% power accident means that fewer tow trucks would be required than at full power (LILCO Brief at 15);
access control coordination would be easier (LILCO Brief at 19);
and hospitals would not need to be evacuated (LILCO Brief at 20).
LILCO's total reliance on its technical arguments and ana'.y-ses does not comport with the logic or language of the Board's Orders governing this proceeding.
As the Governments explained in their Initial Brief, the Board has stated several times that 8/
With regard to traffic control, LILCO also uses its technical analysis as a basis for arguing that at 25% power, the traffic measures to be implemented will be reduced because ".
given tho generally smaller offsite consequences of accidents at 25% power, any protective action recommendations advising evacuation are likely to be for areas smaller than the entire 10-mile Shoreham EP2 LILCO Brief at 14.
e P
development of the technical issues in this case must await the completion and publication of the Staff's Safety Evaluation of such issues.
Sag Governments' Initial Brief at 2-5.
Indeed, the Board stated that "in order to focus the inquiry," statements by the Governments of "the ways in which their present contentions are relevant to the proposed operations,""would necessarily await f
the oublication of the Staff Safety Evaluation and a reasonable period for review by the Government's experts."
January 7 Order at 11 (emphasis added).9/
LILCO's Brief ignores the procedures established by the Board, in addition to tailing to address the threshold issue of whether pending contentions are relevant.
When LILCO submitted its Brief, it knew the that Staff's evaluation of LILCO's f
technical analysis was not yet completed, and would not be done in the near future.
On March 9, 1988, the Staff informed all parties and the Board that its work would not be completed until 1/
As noted, the Board also stated that:
I It is certain to us now that the examination of l
this question cannot be accomplished without some opportunity for the Governments to review l
LILCO's original request and the Staff's analysis.
January 7 Order at 11.
Similarly, the Board's Order of l
February 26 stated:
i If the Staff's technical review of the ApplJ-cant's motion is not completed or available in a timely manner, the parties will be afforded l
an additional opportunity to respond to such review.
r j
rebruary 26 order at 2.
l I I
"the early fall of this year."lS/
Under the terms of the Board's Orders, then, the inquiry on LILCO's Request cannot yet be focused on LILCO's technical arguments; the Governments are not i
expected to address such arguments absent the Staff's evaluation; 7
and an opportunity for discovery, review and analyses of the I
L LILCO Request and the Staff's SER.
LILCO's approach, relying exclusively on its technical arguments, is thus procedurally f
invalid and must be rejected.
The Governments emphasize that they do not in any way con-cede the validity of the LILCO 254 power PRA or of LILCO's technical analyses and arguments which are based on it.
As demonstrated in the Governments' Initial Brief, however, it is not necessary to address such technical issues in order to respond to the Board's February 26 inquiry and to conclude that LILCO's Request must be denied.
Nevertheless, under the t
procedure directed by the Board, and assuming that the Board did not deny the Request as it should in light of the relevance of the pending contentions, the Governments will have an opportunity j
to address the merits of the technical analysis after the Staff's evaluation has been completed and reviewed, there has been an opportunity for discovery, and the Governments have filed contentions addressing the technical issues presented by LILCO's f
r Request.11/
i AS/
Staff Response.
11/
LILCO itself has recognized that the appropriate procedure to resolve the technical issues is for the Government to file contentions on those issues.
Egg LILCO's Reply Brief on 25%
Power Questions, Nov. 16, 1987, at 6-71 Governments' Initial Brief at 8, n.4.
i 10 -
B.
The Younalina Affidavit and the Analysis on which it_ig Premised Cannot be Considered Sot only does L:LCO rely upon its 25% power PRA in its Brief, but it goes beyond that PRA and submits an additional technical analysis through the Youngling Affidavit.
The Youngling Affidavit states that the following analyses were performed:
Analyses were performed in which the represen-tative severe accident sequence was selected for each plant. damage state and corresponding release category on the basis of its frequency contribution, severity of radiological release and time of release.
The selection' of the reeresentativa severe accidents sequence was based on the results of the 25% power PRA and an enaineerina assessment of the applicability of the chosen sequence to the release category and plant damage state.
Youngling Affidavit, 1 6 (emphasis added).
Based on this analy-sis, LILCO purportedly classifies percentages of accidents ac-cording to the amount of time required to proceed from an initi-ating event to offsite radiation releases.
LILCO then analyzes such classifications and draws conclusions in an attempt to buttress LILCO's argument that the Board should find for LILCO on the merits of the pending contentions.
The Board cannot accept or rely upon the Youngling Affidavit, or the analyses discussed therein.
It is clear from the face of the affidavit that Mr. Youngling, and LILCO in relying upon Mr. Youngling's conclusions, have gone far beyond the PRA in asserting new technical argunents and conclusions. _
For example, the Affidavit refers to the "selection" of "representative" severe accident sequences based on "an engineering assessment," as part of the bases for the conclusions drawn by Mr. Youngling and relied upon by LILCO.
Youngling Affidavit at 1 6.
Obviously, no one can assess the validity of Mr. Youngling's analyses or conclusions without first knowing and evaluating the validity of the criteria he used in his "selec-tion" and the bases of his "engineering assessment."
These are no: disclosed in the Affidavit.
Thus, for the reasons already articulated by the Board with respect to LILCO's original technical arguments, neither the Governments, nor this Board, are in a position to conduct a focused inquiry about this brand new LILCO technical analyses.
The impossibility of assessing the validity of the Youngling Affidavit is documented by the lunor/Sholly Affidavit attached hereto.
The Minor /Sholly Affidavit establishes that the analyses and conclusions set forth in the Youngling Affidavit go beyond the 25% power PRA and reach results by taking raw data and making several "undocumented analytical and judgmental manipulations Minor /Sholly Affidavit at 1 4.
In addition, the Minor /Sholly Affidavit demonstrates that Mr. Youngling's analysis appears to misapply PRA methodology.
Egg Minor /Sholly Affidavit at 17.
Accordingly, it is clear that no meaningful assessment or discussien of the merits, validity, or relevance of Youngling's analyses or conclusions is possible without first obtaining significant additional information as to the criteria for selec-i
tion, the bases and methods of data manipulation, and the bases i
for Mr. Youngling's engineering assessments.
Minor /Sholly Affidavit at 11 6-8.12/
IV.
THE PENDING CONTENTIONS ARE RELEVANT LI.CO asserts that the pending contentions are not relevant to its proposed 25% power operation.
As a general matter, this argument cannot be taken seriously for two reasons.
First, it ignores the fact that the Plan and the capabilities of LERO to implement it, upon which LILCO's proposed 25% operation are premised, are the sub4ect of the pending contentions.
facond, it ignores the fact that LILCO itself has conceded that the response functions addressed in the pending contentions could or would be required in the event of an accident at 25% power.
Governments' Initial Brief at 31-33.
Furthermore, LILCO's arguments concerning specific issues must also be rejected.
A.
The Exercise Issues Not surprisingly, LILCO attempts to min;mize what it groups together as "the exercise issues."
LILCO Brief at 21-22.
In reality, as set forth in the Governments' Initial Brief, there are two distinct exercise-related issues, each of which requires the denial of LILCO's 25% Power Request.
First, there is the OL-5 Board's holding that the 1986 Shoreham Exercise disclosed 12/
The Minor /Sholly Affidavit sets forth a minimum of 11 categories of information which would be required before one could assess the validity of Mr. Youngling's analyses and conclusions, and even these categories are likely only the beginning.
Minor / Shelly Affidavit at 1 6.
fundamental flaws in the LILCO Plan and in LERO's abilities which preclude a reasonable assurance finding.
The second and separate issue is the clear regulatory requirement that a full pareicipation exercise be conducted before there can kg acoroval of 25% cower ooeration.
10 CFR Part 50, Appendix E, Section IV.F.1.
LILCO simply skirts these two issues by baldly asserting that "at 25% power, exercise results are plainly not material to a decision on LILCO's motion."
LILCO Brief at 23.
This state-ment is wrong, for the reasons set forth at length in the Govern-ments' Initial Brief (at 6-24).
1.
The OL-5 Board's Decision Establishes that LILCO's Plan and LERO are Fundamentally Plawed LILCO initially attempts to discount the results of the Exercise proceeding by stating that "the fundamental flaws iden-tified by the OL-5 Licensing Board go, with one exception, to LERO's performance on the date of the exercise and not to defects in the Plan itself."
LILCO Brief at 24.
This is a gross mischaracterization of the OL-5 Board's decision, as the Governments' Initial Brief, and a review of LBP-88-2 make clear.
l In fact, contrary to LILCO's self-serving assertions, the OL-5 Board held that the LILCO Plan and LERO were fundamentally flawed.
Moreover, the Board defir.ed a fundamental flaw agi as a problem which speaks to performance on the day of the exercise; t
but rather, as a problem that is "pervasive as opposed to a minor i
14 -
or ad hoc problem."
LBP-88-2 at 10.13/
Given the OL-5 Board's findings which are binding on this Board, LILCO's 25% Power Request must be denied.
This Board cannot make a finding that there is reasonable assurance that the public health and safety will be protected.
2.
LILCO has Failed tQ Comolv with Anoendix E By its express terms, Appendix E plainly requires a full participation exercise for a license authorizing "operation above 5% of rated power."
10 C.F.R. Part 50 Appendix E, Section IV.F.1. LILCO claims it should be exempt from this requirement because the Board's January 7, 1988 Order operated as an exemption.
LILCO Brief at 22.
The Board made no such ruling, and indeed could not, as demonstrated in the Governments' Initial Brief at 22-25, for Section 50.47(c)(1) galg exempts compliance with the requirements in subpart (b) of Section 50.47.11/
In fact, as noted in the Government's Initial Brief, LILCO itself previously has sought relief from Appendix E compliance under S 50.12(a) ant S 50.47(c)(1).ll/ Moreover, the recent amendment 13/
The Government's Initial Brief contains numerous examples of the fundamental flaws identified by the OL-5 Board.
Egg Governments' Initial Brief at 11-18.
11/
LILCO footnotes the Commission's Statement of Considerations for its 1985 amendment to 10 C.F.R. 550.12(a), 50 Fed Reg. 50,764 (1985), as somehow supporting the Board's conclusion.
LILCO Brief at 22, n.34.
Not only is LILCO's characterization of the Board's Order wrong, LILCO does not articulate how this cite supports any conclusion relevant to this proceeding.
11/
Government's Initial Brief at 22-23.
And, in the Shearon Harris and Egtry cases, relief ft m Appendix E compliance was granted under Section 50.12, att under Section 50.47(c)(1).
Id.
15 -
to S 50.47(c)(1) explicitly states that subpart (c)(1) addresses only noncompliance with subpart (b).
LILCO also asserts that the Appendix E exercise requirements are simply an amplification of the requirements in 10 C.F.R. 550.47(b)(14).
LILCO Brief at 23.
LILCO supports this assertion with no authority or analysis.
This failure is not surprising in light of the fact that the exercise requirements of Appendly E are separate and distinct requirements which define the scope of the exercise, its nature and its timing.
LILCO itself has recognized the separate nature of the Appendix E exercise requirements by seeking an exemption from those requirements under S 50.12(a), and not attempting to rely on f 50.47(c)(1).ll/
Moreover, the Courts have recognized Appendix E as a complete and separate source of requirements which are material to the licensing decision.
Union of concerned Scientists v.
U.S.
Engigar Rec. Cotaission, 735 F.2d 1437 (D.C. Cir. 1984,), cert.
denied, 469 U.S. 1132 (198S).11/
[k/
Goverments Initial Brief, at 22-23.
11/
The Board's Order of Apri's 9, 1988 states that:
the new rule provides that due allowance is required to be given where non-participation of state or local authorities makes compliance with 10 C.F.R. 50.47(b) unfeasible and since Appendix E supplements those standards, due allowance for compensatory measures is directed to be made for the requirements of Appendix E also.
Memorandum (Extension of Board's Ruling and Opinion of LILCO Summary Disposition Motions of Legal Authority) (April 18, 1988) at 22.
While the Governments disagree with the Beard's interpretation, we note that this statement is of no relevance here.
The statement only addresses the situation where a non-(footnote continued) L
4 i
B.
Remand Contentions t
In ite Brief, LILCO addresses the relevant pending contentions by arguing that the Board should rule for LILCO on the merits of those contentions.
Thus, for oxample, LILCO argues that the "traffic control plan can be easily accomplished,"
(LILCO Briet at 14); "tow trucks vill provide a large excess of I
t removal capacity" (LILCO Brief at 15); "government officials will notify the public to take appropriate actions if so recommended f
by LILCO" (LILCO Stief at 15); hospitals will not need to be evacuated (LILCO Brief at 20); and the Governments will utilize the State EBS System (LILCO Brief at 21).
These argumtnts do not j
address whether the remand contentions are relevant.
- Rather, r
LILCO is arguing why it should prevail on the merits.
These i
contentions are being vigorously contested before the Board at this very time.
Neither LILCO nor this Board can predict the l
outcome of that litigation, but there can be no disputo that
{
4 r
~
these contentions are relevant to LILCO's proposed 25% power operation.
Sgt Governments' Initial Brief at 28-34.
Indeed, the 1
l Board has recognized that "the ' relevance test' for contentions i
i expressed in 50.57(c) is much less ricorous than the 'not i
l t
(footnote continued from previous page) j compliance is alleged to be a result of government non-participation.
LILCO's failure in the exercise proceeding did l
not result from government non-participation.
1 I
I i
)
b l
17 -
l i
i L ---
significant' test of 50.47(c)."
January 7 Order at 7 (emphasis added).
Given this standard, the relevance of the pending contentions cannot be gainsaid.
The reason LILCO resorts to a bootstrap argument on the OL-3 pending contentionc is clear.
LILCO's Request is plainly premised on the existence an' adequacy of its Plan and the ability of LERO to implement that Plan, regardless of the size of the area or the number of citizens involved in the emergency response.
Moreover, as is fully set forth in the Governments' Initial Brief, che LTLCO Request acknowledges that many articular aspects of the Plan and LERO will be implicated if
.here were an accident at 25% power.18/
LILCO's Brief never comes to grips with these facts and the resulting undeniable relevance of the custanding emergency planning issues.
V.
CONCLUSION For the foregoing reasons and those set forth in the Governments' Initial Brief, LILCO's Request must be denied.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 18/
Governments' Initial Stief at 30-32..
M Lawrence Coe Lanpher Xarla J.
Letsche David T. Case KIRKPATRICK & LOCKRART 1800 M Street, N.W.
South Lobby - Ninth Floor Washington, D-C.
20036-5391 Attorneys for Suffolk County C. Al~ /&e_.
~~
Fabian G. Palomino
(
Richard J.
Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York
)
Y b. & l h =
ArY l
Stephed B.
Latham
(
Twomey, Latham & Shea Post Office Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton April 21, 1988 I
i o
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensitia Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. LJ-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power
)
Station, Unit 1)
)
)
)
AFFIDAVIT OF GREGORY C. MINOR AND STEVEN C.
SBOLLY Gregory C. Minor and Steven C. Sho11y, being under oath, depose and say as follows:
1.
(Minor)
I received a PSEE in electrical engineering from the University of California at Berkeley in 1960 and a MSEE in electrical engineering from Stanford University in 1966.
I have 27 years experience with nuclear power and related areas.
fm particular, for 16 years I was employed by the General 31ectric Company where I worked on matters gelating to the design, construction and operation of nuclear munitoning and safety systems, including hands-on experience at reactor sites.
I have been a consultant with MHB Technical Associates for 11 years, during which time I have beer. invelved in a wide variety of consulting projects, many of : hem related to the probabilistic risk assessments ("PRAs") for nuclear power plants and reviews of 8O ;'N$b
( O f f'
4 f
nuclear plant safety and licensing.
These include a PRA for the Barseback Nuclear Plant in Sweden and contribution to a PRA for 1
the Caruso plant in Italy, plus testimony in the Shoreham pro-ceeding on' evacuation / sheltering issues using dose projections i
l resulting from co.cputer-generated accidet.*, and dose assessments.
I I have testified as an expert witness in numerous proceedings before the Nuclear Regulatory Commission ("NRC") and l
other bodies, including both the health and safety and prior emergency planning proceedings in this Shoreham litigation.
I am l
l a member of the Nuclear Power Plant Standards Committee of the i
i Instrument Society of America, and I served as a peer revir,wer l
with the NRC's TMI Accident Investigacion Report.
I am also co-holder of a patent on a nuclear monitoring system.
i l
(Shelly)
I am an Associate Consultant with KHB Technical r-Associates.
I have more than five years experience in the per-formance and review of probabilistic analycis of nuclear power i
plant safety issues, including the review of PRA studies and the f
application of PRA results to the assessment of generic issues
{
and emergency planning practices and procedures.
I have served as a member of the peer review group on regulatory applications i
1 of PRAs (NURE?, 1050) and as a member of the Workshop on Contain-l I
j men. Performance Objectivas (as part of NRC's Safety Goal l
L a
)
Program).
I have tLStified in NRC proceedings on the Indian f
Point and Catawba plants concerning PRAs and their application to l
emergency planning.
f l,
.n 2.
We have reviewed '.he March 31, 1988 Affidavit of Mr.
Edward J. Youngling ("Youngling Affidavit") submitted in support of LILCO's April 1, 1988 Brief on the "Substantive Relevance" of the Remaining Emergency Planning Contentions at 25% Power (the "LILCO Brief").
We have also reviewed the LILCO Brief itse_
and LILCO's April 27, 1987 Request for Authorization To Increase Power To 25%.
3.
The Youngling Affidavit scates thatt Analyses weci performed in which the reoresentative severe accident sequence was selected for each plant damage state and corresponding release category on the basis of its frequency contribution, severity of i
1 radiological release and time of release.
4 The selection of the reoresentative severe accidents sequence was based on the results of the 25% power PRA and an encineerino assessment of the applicability of the chostn sequence to the release category and plant damage state.
Youngling Affidavit, 16 (emphasis supplied).
Based on this analysis, Mr. Youngling classifies the percentage of accidents requiring certain amounts of time to proceed from initiating events to an offsite radiation release.
4.
Even the summary description in the Youngling Affidavit establishes that the analysis performed by Mr. Youngling has gone at least one step beyond the LILCO PRA t'or 25% power.
In parti-cular, the Youngling analysis has taken raw data regarding the probability of certain events and sequences and made several -
t undocumented analytica1'and judgmental manipulations of the data to arrive at the stated conclusions, t
I 5.
As we stated in an affidavit previously submitted to
{
the Commission concerning LILCO's application to operate at 25%
i I
]
power, a meaningful review of a PRA is a time consuming and j
3 complex process.1/
Because the analysis described in the L
l\\
Youngling Affidavit has gone beyond the PRA, LILCO has injected t
f yet another area of tachnical analysis into the case.
In parti-cular, it appears from the Youngling Affidavit that LILCO sorted
[
l; data and accident sequences several times and applied some un-l i
l specified criteria to make additional segregation of the data in 1
i order to reduce certain figures related to perce tage of core I
melt accidents falling into a specific category.
[
1 l
l 6.
The validity of the Youngling Affidavit and its conclu-I sions cannot be judged based on the information supplied in the Youngling Affidavit.
Based on our preliminary review, the
}
following information is the minimum which would have to be i
t j
collected and analysed before the validity of Mr. Youngling's j
1 l
analyses and conclusions could be assessed:
i a.
What processes and criteria were used in selecting 1
the "representative severe accident sequence"..."for each plant damage statu and corresponding release category on the j
{
basis of" frequency contribution.
(Youngling Affidavit at j
16) l 1/
111 Suffolk County, State of New York and Town of Southampton i
Response in Opposition to LILCO's Motion for Expedit?d Commission Consideration (April 27, 1987), Affidavit of Gregory J. Minor and Steven C. Shelly, 1 4.
The Staff has not yet completed its review and published a Safety Evaluation Report for the LILCO 25%
l j
power PRA, so that a meaningful government review of the FRA is still in the future.
l l j
r
.. -~
m--...-..-
b.
What processes and criteria were used in selecting the "representative severe accident sequence"..."for each plant damage state and corresponding release category on the basis of" severity and radiological release.
(Youngling Affidavit at 19) c.
What processes and criteria were used in selecting the "representttive severe accident sequence"..." for each plant damt.ge state and corresponding release category on the basis of" time of release.
(Affidavit at 16) d.
What were the first place, second place and third place alternate choices in each of the categories identified in the above three areas.
e.
What were the bases for the "Engineering Assess-ment" referred to in the Youngling Affidavit at p.
2, para. 6.
f.
What is the uncertainty range of each numerical value entered on Table 1 of the Youngling Affidavit.
g.
What accident sequences for the 25% power analysis are included in the "3.3% of core melt accidents which proceed from the initiating event to an offsite radiological release in about one hour" as indicated in the Youngling Affidavit at p.
2, para. 7.
h.
What accident sequences for the 100% power analy-ses are included in the "6% of all core melt accidents (which] progress from their initiating events to offsite radiation release in about I hour," as indicated in the Youngling Affidavit at p.
2, para. 8.
i.
Are results of tne 25% power PRA and the undefined 100% power PRA directly comparable and are the two analyses based on identical assumptions?
j.
What accident sequences are included in the "0.5%
of all core melt accidents at 25% power (which) require less than seven hours to proceed from their initiating event to offsite radiation releases," as indicated in Affidavit at p.
3, para. 9.
k.
What were the criteria usad to set the threshold for seismic events being "well-beyond the safe shutdown earthquake" as used in Affidavit at page 3, para 9.
Moreover, once tne above information is obtained and analy:ed, additional information would almost certainly be necessary for an adequate analysis of the Youngling analyses and conclusions.
j j
j 7.
In addition, although substantial information is
^
necessary before the Younglings analyses can be fully understood 4
j or its accuracy and completeness evaluated, it appears from the i
j face of the Affidavit that che Mr. Youngiing misapplies PRA i
methodology in drawing his conclusions.
The plant damage states l
r characterized in the affidavit are in fact limited and discrete l
representations of what is in reality a continuous spectrum of l
1 accident release characteristics, including release magnitudes j
i and release timing.
In essence,_the Youngling Affidavit analyzes j
the data from only two discrete release types, one with a one i
1 l
hour release and one with a seven hour release, and presents a
t i
arguments to suggest that there is almost nothing left between r
{
one and seven hours.
This is incorrect.
In fact, there is a
[
concinuous spectrum of releases, both in terms of magnitude and f
timing.
If Youngling had taken this continuum into account, the results of his analysis would have been different.
I i
8.
In summary, without significantly more information, the I
L validity of the analyses and conclusions referenced in the Youngling Affidavit cannot be assessed or determined.
- However, based on the face of the affidavit, it appears that the Younglir.g Affidavit misapplies PRA methodology in reaching its conclusions.
(
1 t
I I
i
i
- s<4 h W i
I
(
Gregory C. Minor Steven C. Shelly 1
l Sworn to and subscribed before me this 2/4k day of
{
i April 1988.
l 1
-}
l 4
1 Y A4.
W i
y (Notary Public) i t
j l;
My commission expires:
8h
/4' /#9/
4 l
i a
f i
f 5
i i
[
i t
)
4 P
O Acril 21, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atenac Safety and Licensino Doard In the Matter of
)
)
LONG ISLAND LIGHTING C' ANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' RESPONSE
'O LILCO'S BRIEF ON THE RELEVANCE OF PENDING CONTENTIONS TO LILCO's ?t%
POWER MOTION have been served on the following this 21st day of April, 1988 by U.S. mail, first class, axcept 6; otherwise noted.
James P. Gleason, Chairman Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C.
20555 Dr. Jerry R.
Kline William R. Cumming, Esq.
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counse!.
Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Judge David L. Hetrick Washington, D.C.
20472 (Alternate 3 card Member)
Atomic Safety and L' censing Board Washington, D.C.
20555
~
a Fabian G. Palomino, Esq.
W. Taylor Reveley, III, Esq.
Richard J. Zahleutar, Esq.
Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 22212 Albany, New York 12224 Joel Blau, Esq.
Anthony F.
Earley, Jr., Esq.
Director, Utility Intervention General Counsei N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 Eart Old Country Road Albany, New York 12210 Hicksville, New York 11801 E. Thomas Boyle, Esq.
Ms. Elirabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge. New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr.
L.
F.
Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Lathma & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docket.'ng and Sarvice Section Executive Director Office of the Secretary Shoreham Opponents Coalitlen U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Streat, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 Alfred L.
Nardelli, Esq.
Hon. Patrick G.
Halpin New York State Department of Law Suffolk County Executive 120 Broc.dway, 3rd Floor H.
Lee Dennison Buildirg Room 3-118 Veterans Memorial Highway New York, New iork 10271 Hauppauge, New York 11788 MHb Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suita K P.O.
Box 231 San Jose, California 92.35 Wading River, New York 11792 Mr. Jay Dunkleburger Edwin J. Reis, Esq.
New York State Energy Office Richard G.
Bachmann, Esq.
Agency Building 2 U.S. Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C.
20555
David A. Brownlee, Esq.
Mr. Stuart Diamor(
Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street New York, New York 10036 Douglas J. Hynes, (.ouncilman Mr. Philip McIntire l
Town Board of Oyster Bay Federal Emergency Management Agency,
Town Hall 26 Federal Plaza Oyster Bay, New York 11771 New York, New York 10278 Adjucatory File i
Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Commission Washington, D.C.
20555 sta T Ltc L / e Karla J. Letsche
/ ~ ' ' '
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 f
I i
a
- ~ -
t I
t s
i l
May S.
1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
pefore the Atomic Safety and Licensino Board r
)
In the Matter of
)
I
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power
)
Station, Unit 1)
)
j
)
)
GOVERNMENTS' BRIEF IN RESPONSE I
TO TEL' STAFF BRIEP OF APRIL 20, 1988 l
i
-t j
j:NTRODUCTION l
1 r
On April 20, 1988, the NRC Staff submitted a pleading styled I
/
t "NRC Staff's Response to LILCO's and Intervanors' Briefs of i
i April 1, 1988 on Motion to Authorize Operation at 25% of Full Power." (hereafter "Staff Brief").
The Staff Brief mani.fests the j
Staff's cavalier attitude toward the procedures established by 4
the Board by advancing arguments that completely disregard the f
l j
Board's Orders.
4 lI The Board's February 26, 1988 Order directed the parties to j
l file briefs addressing the "impact of pending emergency conten-I f
tions (sic) on a reasonable assurance finding authorized by 10 1
C.F.R. 50.57(c)."
Lespite this Board directive, however, the a
i i
l
)
i I
i
&&hD0 I Wf '
i Staff did absolutely nothing in response to the Board's Order except to file a two page document unilaterally declaring that the Staff would not file the brief requested by t,he Boded.1/
4 i
Having failed to comply v3th the Board's Order requiring the parties to brief the relevance of pending contentiens by April 1,
]
1988, the Staff now has the temerity to file the Staff Brief, which asserts that the Governments "ignore" the Board's direc-tions, suggests that the Governments are acting improperly by not j
having completed a review of the technical bases for LILCO's ?5%
power aequest, and argues that the Governments should not be permitted to submit new contentions challenging the technical bases for LILCO's Request at the appropriate time.
Staff Brief I
at 2-3.
I 3
The Staff chose to ignore the Board's Order requiring thc 1
parties to file briefs addressing the relevance of pending emer-gency planning contentions to LILCO's 25% power Request.
Having done so, it cannot now use the reply procedure set up by the j
Board to advance new arguments to which the othet parties, par-ticularly th6 Governments, cannot respond.
The Staff Brief 3
)
should be summarily rejected, in light of the Staff's failure to
]
comply with the Board's Order and with the procedures established by the Board.
I J
1/
On March 9, 1988, the Staff anncunced that the Stt f review of the LILCO 25% poder PRA would not be completed une.1 "late spring," and that the Staff would not be able to ascettain "whether pending contentions are substantively relevant to opera-tion at a 25% power level" until early fall.
l111 NRC Staff Re-sponse to Board Order on helevance of Pending Emergency Planning Cententions to Operation 25 Percent Pewer (sic) (March 9, 1988);
Staff 3rief at 1.
2
Should the Board choose to consider tl2e Staff Bri'f, how-ever, the Governments (Suffolk County, the State of New York, and the Town of Southampton) submia. this respor.ee to the arguments made in the Staff Brief, consistent with the Board's provision s
for replies to briefs submitted pursuant to the February 26 Order.
The Staff arguments must be rejected because they ignore the Board's Orders governing the 25% rower proceedings, they ignore the contents of the Governments' April 1 Brief, and they advocate a procedure contrary to fundamental due process.
I.
THE STAFF IGNORES THE BOARD'S RULINGS CONCERNING THE GOVERNMENTS' RIGHT TO DISCOVERY AND TO REVIEW LILCO'S AND THE STAFP'S TECHNICAL ANALYSES The Staff Brief completely ignores the Board's statement that the Governments are entitled to review the Staff Safety Evaluation before undertaking any technical analysis.
- Indeed, the Board's language on this point could not be clearer.
The Board held that the technical issues raised by LILCO's Report cannct be addressed "without some cocorte-ity for the Governments to review both LILCO'r cricinal recuest and the Staff's analvsla thereol."2/
The Boati also held that statements concerning the relevancy of pending contentions "would necessarily await the oublication of the Staff Safety Evaluation and a reasotmole ceriod for review by the Governments' exeerts."d/
In the February 26 Order, the Board reiterated the point:
2/
Memorandum and Order (In re: LILCO Request for Authori:atien to Operate at 25% of Full Power) (January 7, 1983) (hereafter, "January 7 Order") at 11 (emphasis supplied).
l/
1d. (emphasis supplied).
3-
i 4
If the Staf.t's technical review of the Appli-cant's motion is not completed or made avail-able in a timely manner, the parties will be t
afforded an addigional opportunity to respond to such review.1/
On April 1, the Covernments submitted a brief discussing in i
detail why the pending contentions prevented the reasonable assurance finding required under Section 50.57(c), precisely as directed by the Board's Orders.
Because the Staff's review was f
l not completed and no discovery schedule has yet been set, the l
Governments could not and did not address tti technical bases of LILCO's Request.
They explained, however, why such technical analysis is not necessary to respond to the Board's February 26 filing.
i Given the Board's specific language postponing technical analysis until the publication of the Staff Evaluation, the pro-priety of the Governments' approach is beyond cavil.
In fact, the Governments' inability to address the technical issues raised by LILCO's Request is no different from that announced by the Staff on March 9.
Unlike the Staff, however, the Governments did respond to the Board's February 26 directive by demonstrating
{
why, for non-technical reasons, the pending emergency planning t
contentions (1) are relevant to LILCO's proposed 25% power opera-I tion, (2) preclude the reasonable assurance finding reqaired j
under Section 50.57, and (3) require the denial of LILCO's 25%
l Power Request.
i/
Osder, dated February $6, 1988.
4-
. - _ _.,,___ - -. _.. -, -.,,._.-. _, -, - - -.- -..- - _ - _ _ -_. -, _,_. - - -1
II.
TBE STAFF BRIEF IGNORES THE SUBSTANCE OF THE GOVERNMENTS' APRIL 1 BRIEF t
The Staff Brief essentisily ignores the contents of the Governments' April 1 Brief.
For example, the Staff's assertion i
that the Govr.raments' have not shown whether the pending emer -
gency planning issues, including Lig iudicata decisions by the OL-5 Licensing Board, are substantially relevant to the issuance of a 25% power license, is ridiculous.
Egg Staff Brief at 3-4.
In fact, the Governments' April 1 Brief included extensive dis-cussion, with detailed citations to LILCO's Request, to the pending contentions, and to the OL-5 Board's decisions, which demonstrated the relevance of the outstanding emergency planning 1
issues to the matter identified by the Board as the issue in this proceedings whether there can be a finding of reasonable assur-ance that adequate protective measures can and will be taken, i
based on the LILCO Plan and the purportedly "trained" LERO organ-ization.
The Staff's suggestion that the Governments failed to t
address the subject of the Board's inquiry is without basis.
III. THE STAFF IGNOPES THE GOVERNMENTS' RIGHT TO CHALLENGE THE l
BASES OF LILCO'S 25% POWER REQUEST AND THE BOARD'S ORDERS TO THAT EFFECT g
L There are two layers of issues which must be addressed in
{
resolving LILCO's 25% Power Request according to the Board's l
i Orders interpreting Sectica 50.57.
First, issues concerning whether pending emergency planning contentions are relevant to the 25% power proceeding must be addressed.
Second, if it is i
i 5-I
I i
determined that no pending emergency planning contentions are relevant, then issues concerning the validity of the technical analyses supporting the 25% power Request and whether the analyses permit the finding r3 quired under the regulations must be addressed.
LILCO's 25% power Request makes abundantly clear that that Request rests on two bases:
(1) a 25% power limitation; and (2) an adequate Plan and LERO.
Because issues concerning the adequacy of the LILCO Plan and the LERO are the only issues ripe for discussion, they are the issues which the Governments have addressed to date.
They alone require the denial of LILCO's Request.
Should the Board tale (erroneously, in the Governments' view) that LILCO's Request can be considered dAspite the relevant pending emergency planning contentions, it is clear that the technical issues raised by LILCO's Request must be addressed.
The Board has stated that such issues are critical to LILCO's application and must be fully developed in "the analytical crucible of litigation."
January 7 Order at 9.
The Staff has acknowledged the importance of the technical issues as well.1/
i 5/
The significance of the technical issues was acknowledged by the Staff when it stated:
As the Staff does, LILCO recognizes that action in its request to operate at 25% power requires an analysis of the validity of its projections of differences in accident sequence progressions at a 25% power level in contrast with operations at full power.
Staff Brief at 2.
6-
P Yet, because of the complicated nature of these technical mat-ters, the Staff has not completed its analysis of the technical issues.
As noted, the Governments are in a similar position in that they have yet to complete a review of the technical issues, and in fact are not required to complete that review until a reasonable time after the publication of the Staff Evaluation.
As the Governments have repeatedly stated, they d2 all con-cede the validity of LILCO's technical analysis.
At the time deemed appropriate by tne Board, and after the completion of the Staff Evaluation and any necessary discovery, the Governments will file contentions addressing the validity of LILCO's tech-nical analyses or conclusions.
The Staff's argument that the Governments cannot file contentions challenging the validity of LILCO's assumptions, analyses and conclusions (agg Staff Brief at 3, n.1), suggests that tne Board could address LILCO's 25n power l
Request without affordino the Goverm.ments the richt to challence the bases of LILCO's l ice n tie recuest.
Such a procedure would be a gross deprivatica of the Gavernments' due proce'ss right to a hearing which is guaranteed by the Atomic Energy Act and the U.S.
i Constitution.
There is no conceivable basis for the suggestion i
that this Board could consider LILCO's unprecedented license application and consider or rely upon LILCO's submitted technical f
analyses and conclusions without providing the Government an opportunity to challenge the LILCO submittal.1/
5/
The Staff has cited two authorities in attempting to truncate the Governments' rights to file contentions:
Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983) and Statement of Poliev en Cenduct of Licensine Pro-7-
~_
i J
I l
On November 6, 1987, the Staff appeared to recognize the two 4
separate areas of inquiry involved in LILCO's Request oy advocat-l ing a precedure which contemplated a three step process for re-i solving 25% power issues:
(1) eendine emereenev olannino conten-i i
11qng would be analyzed for relevance to the Requests (2) after the pending contentions were analyzed, any party would have an opportunity to demonstrate that new contentions are relevant and (3) the Board would then make determinations with respect to the matters placed in controversy by the opposing party.1/
- Thus, L
j ceedinas, CLI-81-4: 13 NRC 452, 454 (1981) (hereafter "ERC
(
l S_t_agement of Poliev").
Neither of these authorities are rele-i j
vant.
The Catawba case concerns late filed contentions -- a i
subject which is irrelevant in this procteding.
In particular, l
under NRC regulations, the Governments are required to file l
contentions no later than 15 days prior to the first prehearing i
conference.
10 C.F.R. S 2.714(b).
No such conference has been scheduled for 25% power, and there is therefor no requirement to file contentions.
Indeed, in the 25% power proceeding, the Board i
has directed that pending contentions be addressed before new l
j contentions are analyzed for relevance.
e n
j The Staff's citation to the NRC's Statement of Poliev is j
similarly inapposite.
The Staff cites to the Statement of Policy i
i section concerning a party's obligations in NRC proceedings.
The
[
Governments have fulfilled their responsibilities as defined by the Board, and it is indeed ironic that the Staff, which has yet
)
to complete its analysis, would make unfounded allegations about another party's failure to fulfill their responsibilities.
1 i
1/
In particular, the Staff analyzed the way the requirements i
of 10 C.F.R. $ 50.57(c) should be applied to the 25% power pro-ceedings, and concluded as follows:
L This language indicates that the Board should
(
(1) consider whether eendino contentions in the l
proceeding are relevant to the request for au-thorization of the activity (here 25% power
(
operation)
(2) allow any carty with conten-L tions the opportunity to show that those con-i tentions are se relevant and (3) make findings l
on the application of the Section 50.57(a) i criteria to the activity sought to be licensed I
with resoect to thole criteria olaced into con-
t under the procedure earlier advocated by the Staff, new conten-tions concerning the technical bases for the 25% power applica-tion would not be heard until after pending emergency planning contentions were analy:ed.
That proposed procedure was particu-larly appropriate for structuring the 25% power proceedings, for, as the Eoard has observed, a determination that a pending emer-gency planning c.ntention is relevant by itself requires the denial of LILCO's 25% power application.1/
The Board essentially adopted the Otaff's earlier recom-mended procedure of first determining the relevance of eendino enercency elannino contentiong.1/
Moreovet, the Board ordered that even before the relevance of eendino tan 3entions could be addressed, the Governments are entitled to review the Staff Safety Evaluation at the outset.lE/
Given the fact that the troversy by an cocosino earty.
NRC Staff Response to Board Memorandum Requesting Parties Views on Questions Raised by LILCO's 25% Power Authorization Motion i
(November 6, 1987) (emphasis supplied) at 6.
E/
January 7 Order at 15.
1/
The Board stated the following:
Furthermore, we agree with the Staff that the plain wording of 50.57(c) requires that we
"(1) consider whether cendino contentions in the proceeding are relevant to the request
...; (2) allow any earty with contentions the opportunity to show that those contentions are so relevan t and (3) make findings on the ap-plicatioe of the Section 50.57(a) criteria to the activity sought to be licensed" with re-spect to the matters in controversy.
January 7 Ordee at 7.
11/
ihe Board stated that the Governments' statements on the 9-
Staff had not yet completed its review, the Governments followed precisely the course directed by the Board when it addressed the non-technical reasons why the pending emergency planning conten-tions are relevant at 251 power.
The Governments, pursuant to the Board's Orders, have fol-icwed the procedure previously advocated by the Staff an(. adopted by Jhe Board.
Yet, in a reversal of its earlier posit 19n, the Staff now contends that the Governments should not be-411 owed to i
submit new contentions challenging the technical basie of LILCO's Request.
The motive for the Staff's about face is difficult to fathom, but the Staff's new position clearly contravenes the Board Orders and fundamental notions of due process.
The Board must therefore reject the Staff arguments.
i CQNCLUSION In conclusion, the Staff Brief contradicts earlier Staff positions in this case, contravenes the Board's Orders, and proposes a procedure which violates due process.
The Staff Brief must therefore be rejected.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County C piax i
Veterans Memorial Highway Hauppauge, New York 11788 relevance of pending contentions "would necessarily await publi-cation of the Staff Safety Evaluation and a reasonable period for review by the Governments' experts."
January 7 Order at 11.
10 -
O s'
C__
mwl i.
n Lawrence Oce Lanpher Karla J. Letsche David T. Case KIRKPATRICK & LOCKHART L
1800 M Street, N.W.
South Lobby - Ninth Floor Washington, D.C.
20036-5891 i
Attorneys for Suffolk County f0rL Fabian G.
Palomino Richard J. Zahnleuter t
Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany New York 12224 Attoroeys for Mario M. Cuomo, Covernor of the State of New York i
1 WA
- 6. le.dk J.6rt Stephe6 B. Latham Twomey, Latham & Shea Post Office Box 398 1
03 West Second Stseet R'verhead, New York 11901 t
Attorney for the Town of I
Couthampton May 5, 1988 i
i l
i
- 11 _
r May S.
1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board i
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
j
__)
l CERTIFICATE OF SERVICE i
I hereby certi.y that copies of GOVERNMENTS' BRIEF IN RESPONSE TO THE STAFF BRIEF OF APRIL 20, 1988 have been served on the following this 5th day of May, 1980 by U.S. mail, first class, except as otherwise noted.
Jamis P. Gleason, Chairman
- Mr. Frederick J. Shon*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C.
20555 Dr. Jerry R. Kline*
William R. Cumming, Esq.*
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street.,
S.W.,
Room 840 Judge David L. Hetrich'*
Washington, D.C.
20472 (Alternate Board Member)
Atomic Safety and Licensing Board Washington, D.C.
20555
a e
Fabian G. Palomino, Esq.
W. Taylor Reveley, III, Esq.**
Richard J. Zahleuter, Esq.
Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 219 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq.
Anthony F. Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 i
E. Thomas Boyle, Esq.
Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11798 Veterans Memorial Highway Hauppauge, New York 11788
[
Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street r
North Country Road Riverhead, New York 11901 Wading River, New York 11792 l
r Ms. Nora Bredes Docketing and Service Section l
Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 Alfred L. Nardelli, Esq.
Hon. Patrick G. Halpin l
New. York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building i
Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 i
MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee i
Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Edwin J. Reis Esq.
New York State Energy Office Richard G.
Bachmann, Esq.
Agency Building 2 U.S. Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel i
Albany, New York 12223 Washington, D.C.
20555 I
l
o David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500-Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street 4
New York, New York 10036 Douglas J. Hynes, Councilman Mr. Philip McIntire l
Town Board of Oyster Bay Federal Emergency Management Agenc$;
Town Hall 26 Federal Plaza Oyster Bay, New York 11771 New York, New York 10278 l
Adjucatory File
- Atomic Saf0ty and Licensing Board l
Panel Docket U.S. Nuclear Regulatory Commission Washington, D.C.
20555 A2 "_
Sy Hand (on May 6, 1988)
David T. Case By Federal Express KIRKPATRICK & LOCKKART 1800 M Street, N.W.
I South Lobby - 9th Floor Washington, D.C.
20036-5891 i
"i b
i 4
t x
l r
l i
i 4
4 i
f I
i
Novembe r_ _2 3, 1988 UNITED STATES OF AMERICAN N NUCLEAR REGUIATORY COMMISSION
,, f
, ; ?ad Atomic Safety and Licensine Accea$_, Board' 1
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
l NOTICE OF APPEAL In accordance with 10 CFR i 2.762, Suffolk County hereby notices its appeal from the Licensing Board's Memorandum and Order (Granting In Part And Denying In Part LILCO's Request For Inmediate Authorization To Operate At 25% Powar), dated November 21, 1988.
Respectfully submitted,
,r-
_ _f %*)nu m_
Lawrence Coe IAhphGr KIRKPATRICK & LOCKRAP.T l
1800 M Street, N.W.
South Lobby - 9th Floor i
Washington, D.C.
20036-5891 i
L P
r
-m
r l
'.a..t :
Hovembeg_2),'.19tg
'E6 NDI 25 P2 :54
?
UNITED STATES OF AMERICA NUCLEAR REGULTTORY COM}tISSION
, ;; ~ <
\\
tc a
..cf l
Atomic S_qfety and Licensina Acceal Board
-W" l
)
In the Matter of
)
)
LONG ISLAND LIGHTING '.*0MPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Poder Station,
)
Unit 7.)
)
)
EOTICE OF APPEAL q
In accordar.ce with 10 CFR 5 2.762, the State of New York hereby notices its appeal from the Licensing Board's Memorandum and Order (Granting In Part And Denying In Part LILCO's Request For Ir. mediate Authorization To Operate At 25% Power), dated November 21, 1988.
Respectfully submitted, F&bian G.
Pa~1epin'o Richard /IZ,ahnicuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Cap.itol Building Albany, New York 12224 Attorneys for Governor Mario M.
Cucno and the State of New Ycrk
198a
, ;97 ; 7 November 23.
a... t i
'88 W/ 25 P2 :54 UNITED GTATFS OF AMERICA NUCLEAR REGUIATORY COMMIS3 ION 3, '((((-
'ut ".
and Licensina Acumal Board
.k-A_tomic Safety
)
Docket No. 50-322-OL-6 In the Matter of
)
)
(25% Power)
LONG ISIAND LIGHTING COMPANY
)
)
(Shoreham Nuclear Power Station,
)-)
Unit 1) f NOTICE OF APPEAL I
thampton I
with 10 CFR $ 2.762, the Town of Sou In accordance i ensing Board's Memorandum hereby notices its appeal from the L cDenying In Part LILCO' and Order (Granting In Part And At 25% Power), dated For Immediate Authorization To Operate November 21, Respectfully submitted, 1988.
$. ~( /
Y 2hp Stephen B. Lathan Tvomey, Latham & Shea 33 West Second Street P.O. Box 398 11901 Riverhead, New York Attorney for the Town of Southampton
f i
y i L iJ ',
i, r Movemba?.13. 19(),
,g UNITED STATES OF AMERICA i"~'
NUCLEAR REGULATORY COMMISSIOJ,
Atomic Safety and Licensina Anomal Board i
In the Matter vf
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of Governments' Motion for Stay of November 21, 1988 Licensing Board Order, Governments' Motion for Page Extension, Affidavit Of Lawrence Coe Lanpher, and Notice (s) of Appeal for Suffolk County, the State of New York and the Town of Southampton have been served on the following this 23rd day of November, 1988 by U.S. mail, first-class, unless otherwise indicated.
Christine N. Kohl, Chairman
- Alan S. Rosenthal*
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Howard A. Wilber*
James P. Gleason, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C.
20555 John H. Frye, III, Chairman Dr. Oscar H. Paris Atomic Safety and Licensing Board Atomic Safety and Licensing B ard U.S. Nuclear Regulatory Ccmmission U.S. Nuclear Regulatory Commissi0n Washington, D.C.
20555 Washingten, D.C.
20555
d Mr. Frederick J. Shon Dr. Jerry Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regflatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service Section Edwin J. Reis,'Esq.*
Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 WLshington, D.C.
20555 William R. Cummiag, Esq.
Anthony F. Earley, Jr., Tsq.
Spnce W. Perry, Esq.
Genatal Counsel Office of General Counsel Long Island Lighting Comoany Federal Emergency Management Agency 175 East Old Country Road 500 C Street, S.W., Room 840 Nicksville, New York 11001 Washington, D.C.
10472 Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.**
Suffolk County Legislature Hunton & Williana Suffolk County Logiciature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Nighway Richmond, Virginia 23212 Nauppe.uge, New York 11788 Mr. L. F. Britt Stephen 5. Latham, Esq.
Long Islated Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Adjudicatory File
- i Executive Director Atomic Safety and Licensing Hoard Shoreham oppnents coalition P3nel Docket 195 East Main St tet U.S. Nuclear Pegulatory Commission
]
Smithtown, New York 11787 Washington, D.C.
20555 4
i Alfred L. Hardelli, Esq.
Hon. Patrick G. Halpin l
New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-118 Veterans Memorial Highway
]
New York, New York 10271 Hauppauge, New York 11788 MNB Technical Associates Dr. Monroe Schneider 1723 Namilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 E. Thomas Boyle, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney kichard J. Zahnleuter, Esq.
Bldg. 158 North County Complex Special Counsel to the Governor Veterans Memorial Highway Executive Chamber, Rm. 229 Hauppauge, New York 11788 State Capitol Albanf, New York 12224 L
e- _ _ _ -.
4 t
Mr. Jay Emnkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W. 43rd Street Albany, New York 12223 New York, New York 10036 Mr. Philip McIntire David A. Brownlee, Esq.
Federal Emergency Management Agency Kirkpatrick & Lockhart 26 Federa*. Plana 1500 Oliver Building New York, New York 10278 Pittsburgh, Pennsylvania 15222
/
f jd (M rawrence Coe Lanpherr KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby a 9th Floor Washington, D.C.
20036-5891 1
Py Hand By Telecopy