ML20214A927
| ML20214A927 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/15/1987 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#287-3476 OL-3, OL-5, NUDOCS 8705200008 | |
| Download: ML20214A927 (13) | |
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M74 00'E H P wc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFnnE TIIE COMMISSION f
U 3R A r.L a In the Matter of
)
Docket No. 50-322-OL-3 1
)
(Emergency Planning)
LONG ISLAND LIGHTING COMPANY
)
)
Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,
)
(EP Exercise)
Unit 1)
)
NRC RESPONSE TO MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON FOR IMMEDIATE ORDER DIRECTED NRC STAFF TO CEASE UNAUTHORIZED REVIEW OF LILCO'S " REQUEST" FOR 25% OPERATING LICENSE
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6 Edwin J. Reis Deputy Assistant General Counsel May 15,1987 870520000s 870515
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFnRE TIIE COMMISSION In the Matter of
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
LONG ISLAND LIGHTING COMPANY
)
)
Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,
)
(EP Exercise)
Unit 1)
)
NRC, RESPONSE TO MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON FOR IMMEDIATE ORDER DIRECTED NRC STAFF TO CEASE UNAUTHORIZED REVIEW OF LILCO'S " REQUEST" FOR 25% OPERATING LICENSE Edwin J. Reis Deputy Assistant General Counsel May 15,1987
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
Docket No. 50-322-OL-3
)
(Emergency Planning) i..
LONG ISLAND LIGIITING COMPANY
)
)
Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,
)
(EP Exercise)
U Mt 1)
)
NRC RESPONSE TO MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON FOR IMMEDIATE ORDER DIRECTED NRC STAFF TO CPASE UNAUTHORIZED REVIEW OF LILCO'S " REQUEST" FOR 25% OPERATING LICENSE INTRODUCTION On May 5,1987, a " Motion of Suffolk County, State of New York, and Town of Southampton for Immediate Order Directing NRC Staff to Cease Unauthorized Review of LILCO's ' Request' for 25% Operating License" ["Intervenors' Motion"] was filed. The Staff opposes the motion.
BACKGROUND On April 14, 1987, the Long Island Lighting Co. filed a " Request for Authorization to Increase Power to 25%" (Request) together with a " Motion for Expedited Commission Consideration."
The " Request" was predicated on the three independent grounds in 10 C.F.R.
I 50.47(c)(1) each of which provides for relief from the emergency planning requirements of that regulation, to wit:
(a) that deficiencies in emergency plans are not significant for Shoreham; (b) that adequate compensating measures for defects can be taken; and (c) that there are other compelling reasons to operate the plant.
Request at 4.
LILCO's " Motion. for Expedited Commis-sion Consideration" was predicated on allegations that the Shoreham proceedings show no sign of early completion, that there was need for the power from Shoreham on Long Island, that the Shoreham plant is complete and safe and ready to operate except for remaining emergency planning
- Issues, that 10 C.F.R.
I 50.47(c) furnishes a means to authorize operation of Shoreham at 25% power where any of the three conditions set out therein are met, and that LILCO can show it meets each of these conditions.
The NRC Staff responded - to the " Request" and the " Motion for Expedited Commission Consideration" on April 29.
We pointed out that 10 C.F.R. 5 50.57(c), provides procedures for the consideration of motions for " operations short of full power operations" in the context of an on-going proceeding, and sets out the roles of adjudicatory boards as well as the NRC Staff in the consideration of those motions.
Staff Response, at 2-3.
The Staff further discussed the relationship between 10 C.F.R. I 50.47 and 10 C.F.R. I 50.57(c). At4-5.1 The NRC Staff supported the " Motion for Expedited Commission Consideration," on the ground that the plant was complete, that safety findings to support 5%
operation had been made, and the plant had not been licensed for full power operation.
At 5.
The Staff viewed it as appropriate to expeditiously consider whether the three bases of Applicant's " Request" i
had merit and to see whether 25% power operation of the plant might be
-1/
The Staff also recognized that consideration of the Request would necessitate determining whether an exemption was needed under 10 C.F.R. I 50.12(a). At 4-5, n.2.
- conducted under the Commission's regulations and in keeping with the protection of the health and safety of the public.
At 5.
Staff therefore stated it would develop a schedule to consider the application to operate Shoreham at 25% power and inform the Commission of that schedule by May 15,1987. At 6.
On - April 27, 1987, the Intervenors filed an opposition to LILCO's
" Motion for Expedited Commission Consideration," which concluded:
For the foregoing reasons, LILCO's Motion for Expedited Consideration and LILCO's Requestion for Authorization to Operate Shoreham at 25%
power must be summarily rejected.
LILCO's only option to pursue its Request is by filing a motion for an exemption from NRC regulations. Assuming erguendo that LILCO's Request is not summarily re;ected, there are legal and material factual issues in dispute,and a licensing board will have to be established to hear from the parties and to fix procedures for the adjudication of these legal and factual disputes.
At 33.
On May 5,1987, Intervenors filed the subject Motion seeking to have the Commission issue an "Immediate Order Directing NRC Staff to Cease Unauthorized Review of LILCO's ' Request" for 25% Operating License."
This motion was predicated on the fact that the Staff had met with LILCO, in the presence of Intervenors, to discuss the substance of the LILCO Request and had started to see if the " Request" had any merit.
At 1-2. 2,/
2/
Intervenors' Motion also included a reply to the NRC Staff's Response which is not provided for by the Commission's Rules of Practice.
It uses as a vehicle for this response an attack on the 4
Staff for not being " impartial." At 3-6.
Intervenors mischaracterize
]
(FOOTNOTE CONTINUED ON NEXT PAGE)
DISCUSSION The, subject motion is founded on the fallacious premise that the Staff's review of the request for permission to operate Shoreham at 25%
power is unauthorized. 3,/
The Staff not only is authorized, but has a duty to review applications for licensed operations in order to supply the Commission with the Staff's view on whether applications provide a sufficient basis for a Commission grant of the permission sought.
- See, generally, 10 C.F.R. Il 2.101(a), 2.102(a); 2.743(g).
Under 10 C.F.R.
I 50.57(c), an application for " operations short of full power" may be made and considered.
As indicated in Vermont Yankee Nuclear Power Corp. v. NRC, 434 U.S. 519, 526-27 (1977), an application for licensed operation is subjected to an extensive review by the Staff both as (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) both the regulations and the role of the Staff in Commission proceedings.
The Staff, as a party in NRC proceedings, presents a position arrived at by its review of the subject application and by its assessment of where the public interest lies.
See Consolidated Edison Co. of New York (Indian Point, Units 1, 2 and 3), ALAB-304, 3 NRC 1, 6 (1976); Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268, 1 NRC 383, 399 (1975). See 10 C.F.R. I 2.730(c).
3/
The Intervenors have not shown a required predicate for an order to have the Staff cease its review of the subject application.
The Motion, in essence, requests a stay of the Staff's review.
Absent some showing of harm a stay will not ordinarily be ordered.
See Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 &E CLI-81-27, 14 NRC 795 (1981); Metropolitan Edison Co. (Three Mile Island Station, Unit 1), C LI-84-17, 20 NRC 801, 804 (1984).
A study or a review, without some further Board or Commission action, cannot harm Intervenors.
See Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), A LA B-481, 8 NRC 551, 556 (1978), citin, Permian Basin Area Rate Cases, 390 U.S.
747, 773 (1968) (I ar an, J. ).
'Thus no basis for the subject motion to have the Staff cease a review exists.
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predicate to the Staff's advice to the Commission and the Staff's position before the Commission's adjudicatory boards.
The Commission has also recognized that the Staff's duty to review a request to operate a reactor both to see if it is in proper form for acceptance and to supply the Commission (through hearings where appropriate) of the Staff's views on whether the request should be granted.
See Carolina Light & Power Co.
(Shearon IIarris Nuclear Power Plant, Units 1, 2,
3 & 4), CLI-80-12, O
Therefore, it was not only proper, but 11 NRC 514, 517 (1980).
required, that the Staff initiate a review of the Applicant's request to operate its facility at 25% of power when it was filed. 5_/
The Intervenors seem to argue that because there are emergency planning issues before the commission's adjudicatory boards, the Staff's 4
4/
The Staff has extensive delegated authority to schedule its tasks in
~
a manner it deems appropriate.
See Carolina Light and Power Co.
(Shearson Harris Nuclear Power 'PTants, Units 1,
2, 3 and 4),
ALAB-581,11 NRC 233, 237-38 modified, CLI-80-12,11 NRC 514, 517 (1980); Offshore Power Systems (Floating Nuclear Power Plants),
ALAB-489, 8 NRC 194, 206-07 (1978); New England Power Co. (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271, 278-70 (1978).
-5/
The statement in the Motion (at 2) that by commencing review the Staff has "given LILCO everything LILCO wants" is wrong.
The consideration of the " Request" is hardly the grant of the " Request" or even the expedited review of the Request by the Commission as LILCO asked.
It is only the review of an application by the Staff.
Intervenors also claim at 2 of the subject Motion that no review can go forward before the need for an exemption is determined. Neither 10 C.F.R.
I 50.47(c)(1) or I 50.57(d) requires a determination of l
need, let alone requires such a determination prior to a review to see if the conditions in the regulations are met.
As the Staff detailed in n.2 to its Response to LILCO's " Motion for Expedited Review" the need for an exemption remains an open question.
In any event, the question of "need" is not a " threshold question" as Intervenors characterire it, but one which the Staff ordinarily considers in the course of its review.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ duties to. consider the application for operation at a 25% power level are rendered void.
See Motion at 5.
As the Staff pointed out in its
~
response to the Motion for Expedited Commission Review, 10 C.F.R.
I 50.57(c) explicitly provides that an applicant for an operating license subject to a hearing may make a motion for operations short of full power.
See Duquesne' Light Co. (Beaver Valley Power - Station, Unit 1),
ALAB-76-23, 3 NRC 711 (1976).
Nothing in that regulation lessens the Staff's duties to advise any relevant adjudicatory board of the safety of that application (see 10 C.F.R. I 2.743(g)), or lessens the Staff's duties to make findings upon a determination that the matters raised by the application are not relevant to the contentions in hearing.
Nothing in the., emergency planning regulation, 10 C.F.R. I 50.47, limits these duties under 10 C.F.R.
I 50.57(c).
Cf. Motion at 4-5.
Although 10 C.F.R.
I 50.47(d) allows operation of up to 5% of rated power of a facility without determinations concerning the state of offsite emergency preparedness, it does not prevent the Staff's review of an application to operate at a different power level or the ability of an adjudicatory board to determine whether the contentions in hearing are relevant to the activity to be authorized.
See 10 C.F.R. I 50.57(c). As a reading of 10 C.F.R.
I 50.47(d) and the Statement of Consideration i
upon its adoption (47 Fed. M. 30232 (1982)) shows, the entire purpose of this amendment to the emergency planning regulation was to grant additional rights to go to 5% of rated power before a determination of the adequacy of offsite emergency response planning, and not to limit rights and foreclose a Staff review of an application to go to a higher power level or to limit any other rights granted in 10 C.F.R. I 50.57(c).
The
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.. Commission in this proceeding has recognized that 10 C.F.R. I,50.57(c) is applicable in cases where questions are present of whether to permit 4
i limited power operations because of alleged defects in offsite emergency response planning.
CLI-85-12, 21 NRC 1587, 1590-91 (1985).
As it stated:
To refuse to authorize low-power operation when-ever there is uncertainty over whether full-power operation will be authorized would ignore Commission regulations which allow low-power operation when there is reasonable assurance that it will present no undue risk to the public health and safety notwithstanding the pendency of full-power issues.
10 C.F.R.
I 50.57(c).
This regulation is premised on the idea that the 4
inherent benefits of early low-power testing outweigh the uncertainty that a full-power license may be denied.
We see no reason to refuse to recognize.this premise in this case.
In short, the 1
sooner low-power testing is begun, the greater the probability that it will serve the purpose for which it is intended, i.e., to facilitate the earliest possible full-power operation of the plant in the event that the Commission finds reasonable assurance that full-power operation will present no undue risk to the public health and safety.
Clearly there was not any intent on the adoption of 10 C.F.R. I 50.47(d) to denigrate any rights granted under 10 C.F.R. I 50.57(c). 6_/
)
The Intervenors' Motion also seeks to fault the Staff for its failure to discuss the need for the power to be generated by Shoreham this 6_/
In the Seabrook proceeding the Appeal Board has recently dealt with the relationship between 10 C.F.R.
II 50.57(c) and 50.47(d);
however, the issues there involved the grant of license for 5% or less of power, and not with whether 10 C.F.R. I 50.47(d) prevented the grant of a IIcense for over 5% power before off-site emergency planning issues are resolved.
See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC (December 8, 1986);
Id.,
ALAB-853, 24 NRC (November F (FOOTNOTE CONTINUED ON NEXT PAGE) e----
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- _ _ _ _ - _ _ summer.. Intervenors' Motion at 3.
As the Staff's April 29, 1987, response to the " Motion for Expedited Commission Consideration" pointed out,10 C.F.R. I 50.47(c)(1) expressly provides that a failure to meet all emergency planning standards need not result in the denial of a license where the deficiencies are not significant, interim compensating actions can be taken or there are other compelling reasons to permit plant operation.
The applicant applied for relief from the emergency planning standards under each of these provisions of the regulation.
- Each, including whether there is a compelling reason to allow Shoreham to operate because of need for its power, should be examined. However, an examination of that matter cannot be based upon the Intervenors' representations alone; but must, like answers to other questions, await the Staffs review (including any needed consultation with other State and Federal agencies),
and any right to hearing provided for under 10 C.F.R. 5 50.57(c).
There is no reason to delay the Staff's examination of that issue, and by inaction automatically deny a grant of the relief sought by Applicant in the event power is needed this summer. U (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 1986), stay continued, CLI-87-02, 25 NRC
( April 9, 1987);
see also Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-13,17 NRC 1032 (1983).
-7/
The Intervenors conclude the subject motion by alleging a " blind enthusiasm" on the part of the Staff for LILCO and a " prejudice towards" [ sic] the Intervenors. The Staff has taken what it believes is an even-handed position in the Shoreham proceeding and has sided with the Intervenors on very major issues including those (FOOTNOTE CONTINUED ON NEXT PAGE)
. b CONCLUSION For the above stated reasons, Intervenors' Motion for order directing the Staff to cease its review of LILCO's request for a 25% power license
- should be denied.
Respectfully submbitted, L.%
Edwin J.
eis Deputy Assistant General Counsel Dated at Bethesda, Maryland this 15th day of May,1987 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) involving the the extent of equipment covered by the Commission's safety and quality assurance regulations (see ALAB-769, 19 NRC 995, modified CLI-84-9, 19 NRC 1323 (1984)), and those involving the preemption of State law (see ALAB-818, 21 NRC 651 (1985)).
Gratuitous comments questioning the motivation of the Staff are not only uncalled for, but add nothing to the merits of an argument.
Northern Indiana Public Service Co.
(Dailly Generating
- Station, Nuclear 1),
ALAB-204, 7
- 835, 838 (1974).
See also Cincinnati Gas and Electric Co.
(William II. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-36, 16 NRC 1512, 1514 n.1 (1982);
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-619, 16 NRC 897, D16 (1982).
' WjQEP UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION CFFic Gi Docket No. 50-322 b33 h ~
I In the Matter of
)
)
(Emergency Planning)
LONG ISLAND LIGHTING COMPANY
)
)
Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,
)
(EP Exercise)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC RESPONSE TO MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON FOR IMMEDIATE ORDER DIRECTED NRC STAFF TO CEASE UNAUTHORIZED REVIEW OF LILCO'S " REQUEST" FOR 25% OPERATING LICENSE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an. asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 15th day of May,1987.
Morton B. Margulies, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 59 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*
Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon*
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service 4
U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley III, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
4 Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 Douglas J. Hynes, Councilman i
Town Board of Oyster Bay i
Town Hall Oyster Bay, New York 11771
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2 Stephen B..Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham a Shea Lawrence Coe Lanpher, Esq.
Attorneys, at Law Karla J. Letsche, Esq.
33 West Secon8 Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel
- Empire State Plaza 4
U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 4
Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider,,
Robert Abrams, Esq.
North Shore Committee Attorney General of the State P.O. Box 231 of New York a
Wading River, NY 11792 Attn: Peter Bienstock, Esq.
1 Department of Law l
Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum, Esq.
Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743 Edwin J. R s I
Deputy A istant General Counsel
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