ML20215L951
| ML20215L951 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/07/1987 |
| From: | Butler W Office of Nuclear Reactor Regulation |
| To: | Brown H KIRKPATRICK & LOCKHART |
| References | |
| OL, NUDOCS 8705130022 | |
| Download: ML20215L951 (2) | |
Text
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- e May 7, 1987 Mr. Herbert H. Brown Kirkpatrick & Lockhart
.1800 M Street, N.W.
-Washington,.DC 20036-5891
Dear Mr. Brown:
RE: Docket No. 50-322-OL, LILCO Request for Exemption frem 10 CFR Part 50, Appendix E,.Section IV.F.1 In your letter to me of April 2,1987, you called to our attention your two prior letters (dated February 6 and March 3,1987) addressed to Mr. Harold Denton, and the fact that there were no staff replies to the two prior letters.
First of all, I apologize for the lack of staff response to yourLprior letters.
It was our judgment that sending you a copy of our letter to the Long Island Lighting Company (LILCO) on the same subject constituted an adequate response.
Since we decided to defer any staff action on the LILCO request for an exemption, we concluded there was no requirement to resolve the legal issues identified in your letter.- We will certainly consider these issues if and when we are in a position to take action on the LILCO request for exemption.
Sincerely,
/S/
Walter R. Butler, Director Project Directorate I-2 Division of Reactor Projects I/II DISTRIBUTION See next page s
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I Walter R. Butler, Director BWR Project Directorate No. 4 Division of BWR Licensing United States Nuclear Regulatory Commission Washington, D.C.
20555 RE:
Docket No. 50-322-OL, LILCO Request for Exemption from 10 CFR Part 50, Appendix E
Dear Mr. Butler:
We are writing on behalf of our client, Suffolk County,.in response to your letter dated March 6, 1987, to Mr. Donald P.
Irwin, counsel to LILCO.
Your letter states, "Your request
[LILCO's request for an exemption from 10 CFR Part 50, Appendix E, Section IV.F.1] will be further considered when the Shoreham licensing process progresses to the point when such consideration i
becomes more timely and you will then be given an opportunity to r
supplement your mpplication."
l Please advise us promptly 'f the following:
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1.
Does your March 6 letter mean that the NRC Staff claims that the Staff -- rather than the ASLB conducting the Shoreham OL-5 proceeding -- has jurisdiction to consider LILCO's exemption request?
2.
If so, provide the legal basis for the Staff's position?
- 3.
Reply substantively to our letters to Harold Denton of the Staff, dated February 6,1987, and March ?, 1987.
Copies of
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Walter R. Butler, Director Page 2 April 2,1987
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these letters are enclosed.
There is no excuse for the Staff ignoring our letters while replying to LILCO's letters on the same subject.
Very truly yours, W. y[-
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Harold R. Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission L
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20555 c
Re:. Docket No. 50-322-OL LILCO Request for Exemption from i
10 C.F.R. Part 50, ADoendix E
Dear Mr. Denton:
This is in reference to the filing made by the Long Island _
f Lighting Company ("LILCO") with your office entitled " Licensee's Request for Exemption From 10 C.F.R. Part 50, Appendix E," dated January 22, 1987 (hereaf ter, the '" Exemption Request").
On behalf of Suffolk County, and with the authorization of the State of p:
New York and the Town of Southampton (collectively, the " Govern-ments"), we are writing to inform you that your office lacks L"
jurisdiction to consider LILCO's Exemption Request, and that the filing accordingly must be returned to LILCO with instructions that it be filed properly either with.the Commission or the
- Shoreham Licensing Board presiding over the post-exercise litiga-(
tion.
As you know, the Shoreham operating license proceeding is contested.
One of the pending issues in the litigation is whether the results of the LILCO Exercise conducted on February 13, ~ 1986, provide a sufficient basis for issuing a license authorizing operation above 54 power.
The Licensing Board has admitted for litigation contentions on issues arising out of the Exercise.
Each of those contentions alleges that the Ixercise revealed fundamental flaws in LILCO's proposed off-site r~~
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emergency plan and the lack of compliance with the NRC's emer-gency planning regulations.
i LILCO's Exemption Request relates directly to the issues in j.'
the contested proceeding, including contentions which address whether the Exercise satisfies Part 50, Appendix E requirements v(g)b 3 N i
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February 6,1987 Page 2
_a for a full participation exercise.
For example, in its: Exemption
-Request, LILCO asserts that the February 13, 1986 Exercise can serve as the basis for licensing operation above 54 power and L
-that LILCO should be relieved from having to satisfy the Appendix E requirement that a full participation exercise occur within 12 months of the grant of a full power license.
LILCO's position that the scope of the Exercise satisfied the full participation exercise requirements of Appendix E and that the results of the Exercise can provide the basis for the findings necessary under 10 C.F.R. $ 50.47 is not only contested, but is directly at issue in'the licensing proceeding.
See Prehearing Conference Order in the Shoreham OL-5 Proceeding (Ruling on Contentions and Estab-o lishing Discovery Schedule), October 3,1986.
It is fundamental in NRC practice that issues which are contested or which by regulation or statute require a decision by the Commission or a licensing board may be decided only by the Commission or a board.
The NRC Staff has no authority to decide such issues.
- See, e.c.,
Commonwealth Edison, Co. (Byron Nuclear lt Power Station, Units 1 and 2), LBP-84-2, 19 NRC 36 (1984); Public Service Co. of Indiana (Marb,le Hill. Nuclear Generating Station,
!L Units,1 and 2), ALAB-461, 7 NRC 313 (1978); Cleveland Electric Illuminatino Co. (Perry Nuclear Power Plant, Units 1 and 2),
i ALAB-298, 2 NRC 730, 733 (1975); Consolidated Edison Co. of New York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947-(1974);
Washington Public Power Snoply System (Hanford No. 2 Nuclear Power Plant), ALAB-113, 6 AEC 251 (1973); vermont Yankee Power L'
Corp. (Vermont Yankee Station), ALAB-12 4, 6 AEC 358 (1973).
i LILCO's Exemption Request deals directly and fundamentally with contested issues already pending in the Shoreham OL-5 proceeding.
l Therefore, only the Commission or the Shoreham Licensing Board may consider the Request.
In light of LILCO's misfiling of the Exemption Request with your office, it is premature to address the merits of the Request or for the~ Governments to place into dispute material issues of fact.
Should LILCO properly file an Exemption Request, the Governments will respond in accordance with their responsibili-ties under the regulations so,as to obtain a hearing and a denial of the Request.
Nevertheless, for your information, we note that LILCO cannot seriously argue that it is entitled 'to ~an ' exemption' in the present circumstance's, where an exemption would have only the effect of making the exercise results further outdated, stale, and of no pertinence to the reasonable assurance standard; L
where FEMA found five deficiencies and concluded in any event l
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, KIRKPATRICK & LOCKHART
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Page 3 that it cannot make a reasonable assurance finding; and where FEMA's RAC Chairman for Shoreham stated under oath that a remed-ial exercise is necessary.
Finally, the Goverr.ments point out that the format and i
content of LILCO's filing are grossly deficient and subject to summary dismissal in their present form.
Having participated in the extensive 1984 proceedings involving LILCO's request for an exemption from GDC-17, LILCO, perhaps more than any other util-ity, should know that exemption requests require serious and
. meaningful documentation.
LILCO's filing is superficial and contrived; it was not accompanied even by supporting affidavits or corroborating data.
In the event LILCO chooses to refile, the L
Governments will insist that LILCO fully satisfy its obligations and burden of proof under the NRC's regulations.
Should you disagree with the Governments' position that your office lacks authority to consider LILCO's request, the Govern-ments would appreciate your prompt advice and an opportunity for an early meeting at which to discuss this important matter.
Sincerely yours, Herbert H. Brown cc:
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March 3,1987 BY HAND Harold R. Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
Docket No. 50-322-OL-5 (EP Exercise)
Dear Mr. Denton:
On behalf of Suffolk County, New York State, and the Town of Southampton (" Governments"), this is in response to the letter from LILCO's counsel to you, dated February 19, 1987, in which t
LILCO replied to the Governments' letter of February 6.
(A copy of the Governments' February 6 letter is attached hereto for your convenience.)
I LILCO's February 19 letter seeks to rationalize its plea that your office grant LILCO a Section 50.12 exemption from the i d one-year exercise requirement of 10 CFR Part 50, Appendix E.
LILCO cites no legal basis for your office to consider LILCO's exemption request.
There is no legal basis, because LILCO's filing with your office was only a gambit to circumvent regular procedures (a filing with the Commission or the OL-5 Licensing Board) and thus prevent the Governments from having the opportun-ity to contest the exemp, tion request in an adjudicatory hearing.
Accordingly, as stated in the Governments' letter of February 6, r
the only proper course is for your office to return the exemption request to LILCO with instructions that, if LILCO wishes to pursue an exemption, the request must be properly filed with the r
Commission or the Shoreham OL-5 Licensing Board.
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KUUTAVUCK di LCCla{ ART Harold'R. Denton March 3, 1987 l
p Page 2 The following responds to each of the four numbered para-
. graphs in LILCO's letter of February 19.1 s
1.
For reasons stated in the Governments' February 6 letter, your office does,not have jurisdiction to make the
- factual findings required by LILCO's Section 50.12 exemption request.
The Governments hereby confirm that they will contest any LILCO request for an exemption from the one-year rule.
The Governments are thus entitled to a hearing before the Licensing.
Board.
At such a hearing, LILCO would have the burden of proving that it is entitled to an exemption, and the Governments would have the right to dispute material facts alleged by LILCO and present their own affirmative case in opposition to LILCO's request.
i LILCO's suggestion that the timeliness of the exercise is an uncontested issue within the Staff's jurisdiction cannot be taken as a serious argument.
First, it obviously was impossible for 4
the Governments to have proferred such a " timeliness" contention on August 1,1986, when the other exercise contentions wer's filed, since any such contention would have had no factual basis and would have been premature.
1 The Governments first must respond to the unfounded allegation on page 1 of LILCO's letter that it is the Governments' pursuit of litigation over the February 13, 1986, P ^-
-exercise which has precluded a decision on the merits of the exercise within the time period referenced in Appendix E.
l (.
Contrary to LILCO, even absent the Governments' challenge to the i
exercise, the Commission could not have made a licensing decision favorable to LILCO by February 13, 1987.
Following the February 1986 exercise, FEMA identified five " deficiencies" in LILCO's proposed plan (the Governments believe the actual number is much l
greater), which constitute " demonstrated and observed inadequacies that would cause a finding that off-site emergency preparedness was not adequate to provide reasonable assurance that appropriate protective measures can be taken to protect the health and safety of the public living in the vicinity of a nuclear power facility in the event of a radiological emergency."
FEMA Post-Exercise Assessment, April 17, 1986, at 8.
- Also, FEMA's RAC Chairman stated unequivocally that a remedial exercise is required to address these deficiencies plus others identified subsequently by FEMA's. Regional Assistance Committee.
No such y
exercise has occurred or been scheduled.
Thus, regardless of the
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exercise litigation pursued by the Governments -- which, in any event, the Governments' have a statutory right to pursue --
LILCO's own failings at the ' exercise constitute independent reasons that LILCO could never have relied upon the February 1986 exercise for licensing purposes.
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KIRKPATRICK 6. LOCKHART Harold R. Denton March 3,1987 Page 3
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i second, even without the formality of a contention, the timeliness issue clearly is a matter within the jurisdiction of the Frye Licensing Board which was directed in CLI-86-11 to
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determine whether the Fcbruary 1986 exercise can support the licensing of Shoreham.
Just as the Frye Board's jurisdiction extends to matters related to the scope of the Shoreham exercise (see Contentions EX 15 and 16), the Board necessarily also has jurisdiction to assess whether the exercise meets the other Appendix E exercise requirements.2 LILCO, therefore, was required to file its exemption request with the Frye Board rather than the Staff.
Finally, the Governments have a right to reply to LILCO's t
exemption request and to contest any allegations of material fact alleged by LILCO.
Obviously, the only time for the Governments to have exercised this right was after LILCO's exemption request came into existence.
LILCO's argument that the Governments should have had the prescience to reply to something not yet in existence is on its face a laughing matter.
L 2.
LILCO's reference to the Perry case is of no conse-quence.
In Perry there were no papers filed in opposition to the
, exemption request let alone circumstances comparable with those present here, where the Governments are contesting in ongoing litigation many serious issues arising from the exercise, including whether that exercise meets the regulatory requirements i
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of Appendix E.
Further, in Perry there had undisputably been one full participation exercise as well as a second exercise which I
the NRC believed to have been a full participation exercise but which FEMA found to have been a " partial" participation exercise.
In neither Perry exercise had FEMA identified any deficiencies
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affecting the public health and safety.
Indeed, in Perry FEMA had issued a " reasonable assurance" finding.
In contrast, following the February 13 Shoreham exercise, i
FEMA identified five deficiencies and made no reasonable assur-ance finding.
And, unlike the unopposed Perry situation, here the Governments will and do dispute the material facts alleged by LILCO to support the exemption request.
In short, even if your 2
See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, NRC (March 2, 1987) (slip op. at 24) (Edles concurring) ("the intervenors would appear to be entitled at least to raise allegations that the exercise failed in a substantial manner to demonstrate compliance with critical aspects of the Commission's emergency planning regulations").
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KIRKPATRICK &, LOCKHATJ j
Harold R. Denton March 3,1987 F
Page 5 4.
LILCO seeks to blame the Governments for LILCO's viola-tion of the one-year rule.
The truth is precisely the opposite:
L LILCO's own failures and lack of capabilities that were revealed by the exercise have caused LILCO to be unable to satisfy the one-year rule.
Now, LILCO is turning to the Staff for a bailout.
Thus, the true reason that LILCO finds it necessary to request an exemption from the one-year requirement is that LILCO's perform.
ance during the February 13, 1986 exercise was fatally flawed.
Indeed, the lack of skill and knowledge of LILCO's personnel during tha exercise and the fundamental flaws in LILCO's emergency plan have not only necessitated complex litigation before the Frye Licensing Board, they have caused LILCO itself to make two major revisions -- Revisions 7 and 8 -- to 'the LILCO plan since the exercise.4 In essence, LILCO is now making the absurd claim that because the exercise proved LILCO's emergency 7
plan so deficient, LILCO should now be given special dispensation to have the exercise results considered under circumstances not provided by NRC regulations.
Surely, it is preposterous for
, LILCO to ask to be rewarded by the NRC for LILCO's own failures.
In short, LILCO's only course is to file properly for an exemption with either the Commission or the OL-S Licensing Board.
In either of those forums, LILCO wculd have to sustain its burden of proving, among other things, that it would be consistent with law and policy and the public interest for the Commission even to U$~
consider the February 1986 exercise results to be relevant given l
4 The Governments have learned through discovery that another I
Plan revision -- Revision 9 -- is currently being prepared by r
LILCO.
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>e KRKPATRICK &, LOCKHART jr Harold R. Denton March 3, 1987 Page 6 h
the fatal defects of the exercise, the fact that a remedial exer-cise is necessary, and the fact that LILCO's proposed plan has changed in profound respects since the exercise and still is i
inadequate.3 t
Sincerely, 1
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Enclosure i
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b Forexampke L LCO's latest proposed plan has different relocation centers, and different procedures for registering, monitoring, and decontaminating evacuees and vehicles, has new procedures for registrating radiological monitoring and decontamination of special facility evacueen, has no emergency broadcast radio station, has not identified reception centers for school children or special facility evacuees, and has no s
agreement with the American Red Cross.
FEMA's latest RAC review i
-- the December 15, 1986, review of Revisions 6, 7, and 8 of the j
t' Plan which was transmitted to the NRC via Mr. McLoughlin's letter i.
of December 30, 1986 -- identified j,,2, inadequacies, significantly more than the previous RAC review.
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WASMNGTON,0. C. 20555 oo,.*
March 6, 1987 o
r, Mr. Donald P. Irwin-
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Hunton & Williams 707 East Main Street P. O. Box 1535 H
Richmond, VA 23212 i-.
Dear Mr. Invin:
- f RE: DOCKET NO. 50-322-OL LILC0 REQUEST FOR EXEMPTION FROM 10 CFR PART 50, APPENDIX E F
This is in response to your January 22, 1987 request for an exemption for the
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Shoreham Nuclear Station from the requirements of 10 CFR Part 50, Appendix E,
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F Section IV.F.1 to the extent that it requires a full participation offsite t
-emergency preparedness exercise to be conducted within one year prior to i
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cperation above five percent of rated power.
i' As you are aware extensive litigation involving the Shoreham facility is c
continuing before Atomic Safety and Licensing Boards. In addition, a' proposal a
is pending to a'nend the provision of Appendix E to 10 C.F.R. Part 50 which t
currently requires that a full participation exercise be conducted within the year prior to the issuance of an operating license. See 51 Fed. Reg. 43,369 (December 2,1986). Thus, the need for and the extent of an exemption from i
i present requirements of Appendix E of 10 C.F.R. Part 50 which you might require, and to which you might be entitled, cannot be ascertained at this time. We are therefore deferring action on your January 22, 1987, request for an t
cxemption until the need for and the scope of the exemption you seek can be p.more fully evaluated.
Your request will be further considered when the Shoreham licensing process progresses to the point when such consideration becomes more timely, and you till then be given an opportunity to supplement your application.
Sincerely, i
s Walter R. Butler Director BWR Project Directorate No. 4 Division of BWR Licensing cc: See next page 8-76/u/Ms-(/g) r l
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