ML20211F750

Request for Exemption from 10CFR50,App E,Section Iv.F Requirements for Full Participation Offsite Emergency Preparedness Exercise to Be Conducted within 1 Yr Prior to Operation Above 5% of Full Power.Certificate of Svc Encl

ML20211F750
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/22/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Office of Nuclear Reactor Regulation
References
CON-#187-2297 OL-5, NUDOCS 8702250188
Download: ML20211F750 (10)

Text

_ _ _ _ _ _ _ _ _ _ _ . _ _ _

l t

2. 2 f 7 LILCO, JEnuary 22,1987 o

DCLVETED

" 3I C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 JAN 27 P2 :05 Before the Director. Office of Nuclear Reactor Regulation' ,

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL - 5

)

(Shoreham Nuclear Power Station, ) ,

Unit 1) )

LICENSEE'S REQUEST FOR EXEMPTION FROM 10 C.F.R. PART 50. APPENDIX E The licensee, the Long Island Lighting Company (LILCO), hereby requests an ex-emption from the requirements of 10 C.F.R. Part 50, Appendix E, Section IV.F, to the extent they require that a full participation offsite emergency preparedness exercise be conducted within one year prior to operation of the Shoreham Nuclear Power Station above five' percent of full power. The basis for this request is that an exercise was in fact held on February 13, 1986, but that litigation of the results of that exercise will take substantially more than a year to complete; accordingly, the NRC process itself makes it impossible, in a vigorously contested proceeding, like this one, to comply with the one year requirement.

I. Legal Standards A. The one-year rule Section 50.54(q) of 10 C.F.R. Part 50 requires a licensee authorized to operate a nuclear power reactor to follow and maintain in effect emergency plans that meet the standards of 10 C.F.R. S 50.47(b) and the requirements of Appendix E to 10 C.F.R. Part

50.Section IV.F.1 of Appendix E requires that a full participation exercise, which tests as much of the licensee, state, and local emergency plans as is reasonably achievable 8702250100 870122 PDR

• DOCK 05000322 F PDH l

4 ,

without mandatory public participation, be conducted for each site at which a power reactor is located for which the first operating license for that site is issued af ter July 13, 1982. This exercise is to be conducted within one year before the issuance of the first operating license for full power and prior to operation above five percent of rated power of the first reactor and is to include participation by each state and local gov-ernment within the plume exposure pathway EPZ and each state within the ingestion exposure pathway EPZ. The underlying purpose of this requirement is to ensure that an adequate state of emergency response capability is demonstrated through the conduct of an emergency preparedness exercise and is maintained until the full power licensing requirements regarding periodic exercises become effective.

The Commission has proposed to change the one year rule. On December 2, 1986, the Commission published a proposed rule that would make a full-participation exercise required within two years of issuance of an operating license rather than one year. 51 Fed. Reg. 43,369 (Dec. 2,1986).

B. Exemptions Exemptions from NRC requirements may be granted under 10 C.F.R. S 50.12. By the terms of this provision the NRC may grant exemptions that are "(aluthorized by law, will not present an undue risk to the public health and safety, and are consistent with the common defense and security." 10 C.F.R. S 50.12(a)(1) (1986). An exemption will not be granted unless "special circumstances" are present, including one or more of the following:

(11) Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule; or (iii) Compliance would result in undue hardship or other costs that are signifi-cantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated; or

.. (v) The exemption would provide only temporary relief from the applicable reg-ulation and the licensee or applicant has made good faith efforts to comply with the regulation; or (vi) There is present any other material circumstance not considered when the regulation was adopted for which it would be in the public interest to grant an i e.remption

' 10 C.F.R. S 50.12(a)(2)(ii), (111), (v), and (vi) (1986).

II. Background At Shoreham, unlike most nuclear plants, both the local and the State govern-ments refuse to participate in advance emergency planning for the plant, although the State maintains a high level of preparedness by virtue of having other operating nuclear j plants within its borders. LILCO has prepared a " utility plan" to substitute for the local and State governments, and it is that plan on which LILCO bases its case for a full-1 power operating license. At present LILCO has a five-percent operating license and has completed preoperational testing. Only offsite emergency planning prevents the is-suance of a full power license.

On February 13, 1986, a FEMA graded exercise of the LILCO emergency plan was conducted on Long Island. On March 13, 1985 LILCO moved for the establishment of a Licensing Board and the institution of expedited procedures for litigation of the February 13 exercise. On April 17, 1986, FEMA issued its Post-Exercise Assessment of the exercise. On June 6,1986, in CLI-86-11, 23 NRC 577 (1986), the Commission di-rected the appointment of a Licensing Board to commence a hearing on the February 13 exercise. The Commission ordered that the proceeding be an " expedited" one.

A Licensing Board was appointed, and the normal NRC process of contention-filing and discovery began. LILCO voluntarily provided substantial document discovery, in the hope of saving time later, during the spring and early summer of 1986, before the eN l

s. ,

. start of formal discovery. Intervenors filed their contentions on the exercise on August 1,1986; these were 162 pages long with 50 numbered contentions containing approxi-mately 175 subparts, about one subcontention for every 3.77 minutes of the exercise. A prehearing conference to discuss the admissibility of the proposed contentions was held September 24, 1986. On October 3,1986, the Board ruled on which contentions were admissible and which were not.

However, the October 3 order lef t all parties uncertain as to what the admitted contentions were. Accordingly, a series of additional pleadings were filed and an addi-tional prehearing conference was held on December 4, at which the Board clarified its earlier ruling. But because FEMA felt that two of the contentions,15 and 16, should not be admitted, it moved for reconsideration of the admission of those contentions and is now pursuing an appeal to the Appeal Board. Hence, as of this date it is still not fully settled what the issues admitted for litigation will be.

Nonetheless, discovery has been going on and is near completion. Although this was to be an expedited proceeding, there has been more discovery than was had in the original emergency planning proceeding. The current schedule calls for discovery to be completed by February 6,1987, and for the hearing to begin March 9,1987. Thus, the hearing is not expected even to begin until over a year af ter the graded exercise that the hearing is to address. At all points in this process LILCO has urged a speedier pace than that which has been ordered, but its requests have not been granted.

III. Reasons for Granting the Exemption i

LILCO meets four of the criteria for exemption set out in S 50.12(a)(2).

A. LILCO seeks only temporary relief and has tried in good faith to comply (S 50.12(a)(2)(v))

"Special circumstances" justifying an exemption are present when "[t]he ex-emption would provide only temporary relief from the applicable regulation and the

6 licensee or applicant has made good faith efforts to comply with the regulation." 10 C.F.R. S 50.12(a)(2)(v)(1986). LILCO meets this criterion.

LILCO seeks only temporary relief. The requested exemption is designed only to give LILCO time to complete the litigation and obtain a full power operating license, af ter which time LILCO will be subject to the ordinary rule requiring a graded exercise every two years. Indeed, assuming that the ongoing hearing process can be completed s i by February 13, 1988, LILCO is asking only that the Commission do what it is proposing to do in its proposed rule of December 2,1986.

LILCO has tried in good falth to comply with the present regulation. No one will deny that LILCO has repeatedly urged the Licensing Board to expedite the exercise liti-gation. Indeed, LILCO has repeatedly called the Licensing Board's attention to the one-year rule as one reason for expediting. The failure of the proceeding to be finished within a year is beyond LILCO's control.

B. There are present material circumstances not considered when the regulation was adopted (S 50.12(a)(2)(vi))

Special circumstances justifying an exemption are also present whenever

"[t]here is present any other material circumstance not considered when the regula-l tion was adopted for which it would be in the public interest to grant an exemption."

10 C.F.R. S 50.12(a)(2)(vi)(1986).

It is clear that there are circumstances in the Shoreham case that were not con-templated when the one year rule was adopted. At that time the Commission did not know that the D.C. Circuit Court of Appeals would give intervenors the right to a hear-ing on exercises. Union of Concerned Scientists v. NRC,735 F.2d 1437 (D.C. Cir.1984),

cert. denied sub nom. Arkansas Power & Light Co. v. Union of Concerned Scientists, 469 U.S.1132 (1985). Also, the Commission did not contemplate a situation in which both state and local governments, instead of doing emergency planning, would be opposing emergency planning with all their might. Indeed, when the basic emergency ,

--,-.- , ,-- -,-,-r .--,---,w,-w,- ,,-a r_,.- -- ,,,n e, , , _ , , , , - - - -,-,--n,--,a-m,,,-,,,--. ---,r--,--aw,m--

4 planning regulation was passed in the af termath of Three Mile Island, the Commission discounted industry complaints that state and local governments might hold operating licenses hostage, saying that state and local governments would endeavor to provide fully for public protection. 45 Fed. Reg. 55,404 col.1 (Aug.19,1980). In the Shoreham case, and a handful of others, this opinion has now proved wrong.

Finally, the Commission may not have contemplated at the. time the one year rule was adopted that the NRC process would be incapable of completing a hearing within a year. As noted above, despite the fact that the Commission directed the Shoreham exercise litigation be " expedited," the hearing will not begin until more than a year af ter the exercise.

C. Compliance would result in undue hardship (S 50.12(aX2)(ill))

Special circumstances justifying an exemption are also present whenever

"[clompliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated." 10 C.F.R. S 50.12(aX2Xill)

(1986). Clearly, there would be undue hardships and costs in complying with the one-year rule in this case. The reason that the one year cannot be met is simply that the

( State and local governments are vigorously opposing emergency planning. This oppost-tion, and the apparently inexorable pace of the NRC's licensing process, have made it impossible to complete litigation within one year.

l l The present litigation over the February 13, 1986, exercise cannot possibly be i

over by February 13, 1987. If the one year rule is adhered to, then, a full-power license cannot be granted without a second exercise. The State and local governments would 1

contest the results of the second exercise just as vigorously as they are contesting the first one. Accordingly, there would be a reprise of the current exercise litigation, I

which would in turn take more than a year to complete. The result would be the need

~- - -- . --

s s 1 for a third exercise, followed by more litigation lasting over a year, and so on a_d infinitum. The result of complying with the rule, in a vigorously contested case like I this one, is simply a series of very expensive exercises, followed by very expensive liti-

! gation, never leading to an operating license. Each day of delay costs LILCO approxi-mately a million dollars in overhead and carrying charges for the unused power plant.

This is not in the public interest. -

I D. The underlying purpose of the rule would not be served (S 50.12(aX2Xil))

l Special circumstances justifying an exemption exist when "[alpplication of the regulation in the particular circumstances would not serve the underlying purpose of i the rule or is not necessary to achieve the underlying purpose of the rule." 10 C.F.R.

f S 50.12(aX2Xil) (1986). This special circumstance, too, is present in the Shoreham case, 3

for two reasons.

I First, the purpose of the rule is to ensure that all entities responsible for offsite radiological emergency response are prepared at the time an operating license is issued.

I In typical cases these entities consist of a mix of state and local governmental organi-zations, all or almost all of which have other responsibilities than coordinating with each other on emergency planning. In the Shoreham case, by contrast, the bulk of the emergency planning responsibility rests on one single-purpose organization: the Local Emergency Response Organization (LERO). LERO holds frequent drills and exercises apart from the periodic FEMA graded exercises; all of these exercises may be observed by FEMA or the NRC Staff if they wish. Moreover, all of LERO's efforts are directed i

toward a single type of emergency, a radiological emergency at the Shoreham Nuclear Power Station. Accordingly, there is less need to hold frequent FEMA graded exercises than in the ordinary case that involves a variety of state and local governments, which now need hold only biennial drills for operating plants and would be allowed a two year window for licensing purposes.

a 4 Second, the purpose of the one year rule is to ensure preparedness, not to ensure frustration of attempts to comply with it stemming from the susceptibility of the NRC's extended licensing process to manipulation and delay. Imposing the rule here, and as a result condemning Shoreham to an endless cycle of prelicensing exercises (see 1 C above), would not further the rule's purpose.

IV. Conclusion For the above-cited reasons, LILCO hereby requests an exemption from 10 C.F.R. Part 50, Appendix E, Section IV.F.1, to the extent that it requires a full par-ticipation exercise to be conducted within one year before the issuance of the first op-erating license for full power. LILCO requests that the exercise of February 13, 1986 be permitted to serve as the basis for a full power license, assuming it is successfully defended in the ongoing litigation.

Respectfully submitted, i

ws;^ ?!^ . ?TA

, Donald P. Irwfb l James N. Christman l

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 22,1987

1 LILCO, January 22,1987

= t XE i.'E !

m CERTIFICATE OF SERVICE .g7 33 27 p2 $5 In the Matter of CN ' g"j LONG ISLAND LIGHTING COMPANY l (Shoreham Nuclear Power Station, Unit 1) 1 Docket No. 50-322-OL-5 I hereby certify that copies of LICENSEE'S REQUEST FOR EXEMPTION FROM 10 C.F.R. PART 50, APPENDIX E were served this date upon the following by first-class mail, postage prepaid.

Harold R. Denton, Director Atomic Safety and Licensing Office of Nuclear Reactor Regulation Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20515 John H. Frye, III, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission i U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• i East-West Towers 4350 East-West Hwy. Bernard M. Bordenick, Esq.

Bethesda, MD 20814 Oreste Russ Pirfo, Esq.

Edwin J. Reis, Esq.

Dr. Oscar H. Paris -

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mallroom)

U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers 4350 East-West Hwy. Herbert H. Brown, Esq.

Bethesd1, MD 20814 Lawrence Coe Lanpher, Esq.

Karla J. Letsche, Esq.

j Mr. Frederick J. Shon Kirkpatrick & Lockhart Atomic Safety and Licensing South Lobby - 9th Floor Board 1800 M Street, N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20036-5891 East-West Towers, Rm. 430

4350 East-West Hwy. Fabian G. Palomino, Esq.

I Bethesda, MD 20814 Richard J. Zahnleuter, Esq.

l Special Counsel to the Governor l Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol

! U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.

Washington, D.C. 20555 l

l

i Mary Gundrum, Esq. Jonathan D. Feinberg, Esq.

Assistant Attorney General New York State Department of 120 Broadway Public Service, Staff Counsel Third Floor, Room 3-116 Three Rockefeller Plaza New York, New York 10271 Albany, New York 12223 Spence W. Perry, Esq. Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.

Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Mastin Bradley Ashare, Esq.

Stephen B. Latham, Esq. Eugene R. Kelly, Esq.

Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 h.GW

/ James N. Chris'tman

/

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 22,1987

. . .-- - - . - _.