ML20235A791
| ML20235A791 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/07/1988 |
| From: | Gleason J, Kline J, Shon F Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#188-5306 87-553-04-SP, 87-553-4-SP, OL, OL-6, NUDOCS 8801130030 | |
| Download: ML20235A791 (16) | |
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$ 30 b.
t DOCKETED M RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: GFflCE OF SECFr: tai Y 00CKEimG a SU<vlCE ERA C James P. Gleason, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon BDtVED JAN 111988 In the Matter of Docket No. 50-322-0L-6 (Emergency Planning) ,
LONG ISLAND LIGHTING COMPANY (ASLBPNo. 87-553-04-SP)
(Shoreham Nuclear Pcwer Station, )
l Unit 1) January 7, 1988 l
MEMORANDUM AND ORDER (In Re: LILC0'S Request for Authorization to Operate at 25% of Full Power)
Introduction l Before us is the Applicant's Motion For Authorization to Increase Power to 25% of July 14,1987 (Motion), together with an ensuing agglomerate of answers, replies, responses and counter responses.I It was at the outset by i
1 These include: LILCO's Motion For Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25%
Power Request of July 14, 1987 (Designation Motion); Suffolk County State of New York and Town of Southampton Statement Conce rning LILCO's July 14, 1987, Motion to Increase Power to 25% of July 27,1987 (Governments' Opposition to Designation);
YuTfolk County, State of New York, and Town of Southampton Response in Opposition to LILCO Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on (FootnoteContinued) ho p(f
2 no means clear, either from the Motion oi ' om the original Request for Authorization, exactly what path of reasoning through the legal maze the Applicant intended us to wend toward the relief it sought. Because of th;s we issued our Memorandum to the Parties of October 8,1987. We pointed out therein that the Applicant had originally characterized its request as being under 10 C.F.R. 50.47(c)(1), that the Commission had directed that the request, if refiled with this Board, be filed under 10 C.F.R. 50.57(c), but that, in refiling, Applicant had merely stated that the request was under the (FootnoteContinued)
LILC0's 25% Power Request of July 27, 1987 (0pposition to Designation); NRC Staff Response to LILCO Motion for Authorization to Increase Power to 25% of July 29, 1987 (Staff Response to Motion); LILCO's Brief on 25% Power Questions of November 6, 1987 (LILCO's Brief); Views of Suffolk County, The State of New York, and The Town of Southampton in Response to the Licensing Board's October 6, 1987 Memorandum Concerning LILCO's Request to operate at 25% Power of November 6,1987 (Governments' Views); NRC Staff Response to Board Memorandum Requesting Parties' Views on Questions Raised By LILCO 25% Power Authorization Moticn of November 6, 1987 (Staff's Views);
LILCO's Reply Brief on 25% Power Questions of November 16, 1987 l (LILCO's Reply); Reply of Suffolk County, The State of New York, and The Town of Southampton to LILCO's Brief on 25% Power Questions of November 16, 1987 (Governments' Reply); and NRC Staf f Reply to Other Party Views on Board Questions concerning LILC0 Motion for Authorization to Operate at 25% Power of December 15, 1987. All these filings reference or are founded upon LILC0's Request for Authorization to Increase Power to 25%
and Motion for Expedited Commission Consideration filed before the Commission of April 14, 1987, (Request for Authorization);
Governments' Response in Opposition to LILC0's Motions for Expedited Commission Consideration of April 27, 1987 (Governments' Opposition to Commission' Expedited Consideration); Staff's NRL Staff Response to LILC0 Motion for Expedited Consideration of Reauest to Authorize Operation at 25%
of Full Power of April 29, 1987. (Staff Support of Expedition);
and the Commission's ensuing Memorandum and Order CLI-87-04.
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required section but had, in effect, neither changed the previous reasoning nor demonstrated the chain of logic that linked it to the required section of the regulations.
In LILCO's Brief and LILCO's Reply the Applicant has largely ameliorated f
the flaw, establishing a train of reasoning which we can at least follow, although we cannot, as explained below, fully support it.
As we understand LILC0's theory of the case, the logic is as follows:
The request for 25% power is made under the provision of 10 C.F.R. 50.57(c) ,
which would allow ". . . operations short of full power operations . . ."
upon favorable findings concerning the matters under 50.57(a). LILCO believes' that only one numbered section of 50.57(a), section (a)(3), involves any dispute, and believes further that the showing which has been made under 50.47(c)(1) by its Request for Authorization fully satisfies the two-pronged test of 50.57(a)(3) by demonstrating that the 25% power operation "can be conducted without endangering the health and safety of the public" and "will be conducted in compliance with the regulations." LILCO's Brief at 5, 6.
The Governments view LILC0's implication that it has demonstrated i i
compliance with 50.47(c)(1) as " patently false". Governments' Reply at 4. l The Governments point out that before a license can be issued under 50.57(c) l there must be an initial decision on the matters identified in 50.57(a).
Further, the Governments argue that sections 50.57(a)(2),(3),and (6) must all be satisfied, not simply 50.57(a)(3) alone. They point out further that LILCO has not acknowledged the important provision of 50.57(c) that the parties have the right to be heard on relevant contentions before the required initial decision is issued. Governments' Reply at 6.
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i Staff cites 50.57(c):
Action on [a motion to operate at low power] shall be taken by the presiding officer with due regard to the rights of the parties to the proceeding, including the right of any party to be heard to the f extent that his contentions are relevant to the activity to be authorized. Prior to taking any action on such a motion which any ,
party opposed, the presiding officer shall make findings on the !
matters specified in paragraph (a) of this section as to which there is a controversy, in the form of an initial decision with respect to the contested activity sought to be authorized... ,
1 The Staff then notes that "[t]his langJage indicates that the Board should (1) consider whether pending contentions in the proceeding are relevant to the ]
request for authorization of the activity (here 25% power operation); (2) allow any party with contentions the opportunity to show that those I contentions are so relevant; and (3) make findings on the application of the 50.57(a) criteria to the activity sought to be licensed with respect to those criteria (sic) [ contentions] placed into controversy by an opposing party."
Staff's Views at 6.
We are thus confronted at the outset with the following questions:
- 1. Can the Applicant rely upon 50.57(c) to obtain authorization for operation at less than full power by using 50.47(c)(1) to meet the requirements of 50.57(a)?
- 2. Which of the requirements of 50.57(a) must be met in this manner? l l
- 3. Which, if any, of the contentions currently in litigation are
" relevant to the activity to be authorized"?
- 4. Through which of the three permitting conditions of 50.47(c)(1) ("not l significant for the plant in question", " adequate interim compensating actions", or "other compelling reasons") can 50.57(c) be seen to function 1
where the movant attempts to rely on the sequence in question 1. above? !
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5 Analysis of Question l' In examining the way in which 50.47(c)(1) can be used to satisfy the requirements of 50.57(c), it is instructive to consider the history of the section under which LILCO is presently operating the plant at 5% power, 50.47(d). That section is of comparatively recent origin -(47 -Fed. Reg. 30,232 (July 13, 1982)) and postdates both 50.57(c) and 50.47(c)(1). Two cases, l Diablo Canyon, (14 NRC 107) and San Onofre, (15 NRC 61), arose before the Commission adopted 50.47(d), and in'each the applicant sought pennission to operate at low power for testing purposes while still unable to fully comply with the Commission's emergency planning requirements. 14 NRC 167 at 120 et seg, 15 NRC 61 at 191 et seq.
In each case the applicant argued, as LILC0 does here, that operation at a restricted power level (there 5%, here 25%) so reduced such factors as fission product inventory, resideal heat, urgency to respond to off-normal conditions, and the possible consequences of an accident that the deficiencies of the emergency plans were not significant for the plant in question. 14 NRC 107 at 123-139, 15 NRC 61 at 191-197. After hearing argument the Boards in those cases found that, for the proposed operations, the deficiencies in the plans were indeed not significant. 14 NRC 107, 139; 15 NRC 61, 197.
Both of these decisions were undisturbed on review. Indeed, when the Commission issued the rule change that created 50.47(d), permitting operation up to 5% without full compliance with the emergency planning regulations, it noted these decisions favorably, saying:
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The level of risk associated with low-power operation has been estimated by the staff in several recent operating license cases:Diablo Canyon... San Onofre... and LaSalle... In each case the Safety Evaluation Report concluded that low-power risk is several orders of magnitude less than full-power risk. These findings support the general conclusion in the text that a number of factors associated with low-power operation imply greatly reduced risk compare [d] with full power.
47 Fed. Reg. 30,232, 30,233, fn. 1.
We see a compelling analogy between the situation obtaining before the rule change with respect to all low power operation and that obtaining at present with respect to operation above 5%. Where only emergency planning contentions remain to be adjudicated, if an applicant submits a request under 50.57(c) for operation in excess of 5% power, and asserts that the unresolved contentions can be resolved for that power level by virtue of the "not significant for the plant in question" provision of 50.47(c)(1), we must at least give the request serious consideration. It is at least possible that the applicant may be able to comply with the regulations and obtain a low power license through this route. Thus we contlude that LILCO'S motion is properly filed and that no exemption from the regulations is needed as urged by the Governments.
We caution, however, that the road may be a difficult one. In particular, we note that the Commission sanctioned 5% operation in part because Staff analyses had indicated that the risk involved were "several orders of magnitude less than full power risk." It may well be that the risk at 25% is not so greatly diminished. We note also that the Statement of Considerations which the Comission offered at the time of the rule change specifically noted that while the rule change exempted the applicant from NRC and FEMA review of many of the requirements of 50.47(b), the NRC would
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nonetheless be expected to review for compliance with Subsections -
50,47(b)(3),(5),(6),(8),(9)(12),and(15). 47 Fed. Reg. 30,232, 30,233. The exact significance of the Commission's establishing this requirement we have i
not evaluated in the light of 50.47(c)(1)'s stated relief from M1 the {
requirements of 50.47(b).
Furthennore, we agree with the Staff that the plain wording of 50.57(c) requires that we "(1) consider whether pending contentions in the proceeding ;
are relevant to the request . . .; (2)a110w any party with contentions the i opportunity to show that those contentions are so relevant; and (3) make j findings on the application of the 50.57(a) criteria to the activity sought to f 1
be licensed" with respect to~ the matters in controversy.
The interaction between Sections 50.57(c) and 50.47(c)(1) is, in the case l at bar, also complex. It would appehr to the Board, for example, that the
" relevance" test for' contentions expressed in 50.57(c) is much less rigorous {
than the "not significant" test of 50.47(c)(1). Further, LILCO's claim that 25% of power operation lowers the risk sufficiently so that any' emergency planning deficiencies are insignificant or compensated (LILC0's Reply at 10) )l is a claim that inherently compares two incommensurable. How far some given j risk must drop and in what way it must drop in order that some particular H
precaution may become unnecessary is not a matter instantly perceived. {
I Thus our answer to question 1 is: The applicant is entitled to pursue j this course, but the circumstances of a particular case may well require a hearing, and we are bound to consider at the outset whether due process requires such a hearing and upon which of the unresolved contentions it should be based.
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Analysis of Question 2 Here the controversy is simple, direct, and, in the Board's view, of little consequence. The Governments believe that the motien'under 50.57(c) mustconsiderSubsections50.57(a)(2),(3),and(6). Governments' Reply at 5-6. LILC0 believes it need only satisfy the requirements for 50.57(a)(3). l LILCO's Reply at 3-5. Staff apparently takes no position. ;
The three Subsections involved in the dispute set forth findings which would be required in order.to issue a license (whether for full power or for limited power under 50.57(c)). They read as follows:
50.57(a) Pursuant to 50.56, an operating license may be issued by tl.e Commission, up to the full term authorized by 50.51, upon finding thati (2) The facility will operate in conformity with the application as l amended, the provisions of the Act, and the rules and regulations of the Comission; and (3) There is reasonable assurance (i) that the activities authorized by the operating license can be conducted without endangering the' health dnd Safety of the pub.lic, and (ii) that such activities will be conducted in compliance with the regulations in this chapter; and (6) The issuance of the license will not be inimical to the common defense and security or to the health and safety of the public.
LILCO's position, while not succinctly expressed, is apparently that, i
since only Subsection (a)(3) requires " reasonable assurance" and that
" reasonable assurance" finding was made with respect to the extant 5% power
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l license, all other 50.57(a) findings, for whatever power level, have already ]
1 been resolved favorably to LILCO. LILC0's Reply at 6. We find the logic )
1 difficult to follow, but we see no need to grapple with it. )
In the Board's view, for this case, where common defense and security are not at issue nor is the plant's conformity with the application, a positive finding under 50.57(a)(3) would, in fact, be tantamount to a positive finding fcr all three of the subsections at issue. Certainly a negative finding would i
be dispositive. We shall proceed on the assumption that a license can issue !
only if its issuance, the operation of the facility, and the activities authorized will all give reasonable assurance of the protection of health and safety and compliance with the regulations.
Analysis of Question 3 The question of which contentions currently in litigation are relevant in a substantive way to the activity to be authorized is a question that stands at the core of any litigation concerning the request for 25% power.
Furthermore, it is a question of great complexity, involving as it does the interplay of emergency preparedness with the variable scope of potential accidents wher that scope is censidered as a function of power level. There are no quick or obvious answers, and, in our view, the answer to this question may itself be achieved only through the analytic crucible of litigation.
The matter of the validity of the technical analysis supporting LILCO'S motion is a narrow one and constitutes only a small part of the total I l
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10 litigation. Its complex 1ty together with the existing burdens on this Board.
however calls, we believe, for the attention which could only be given by i separating out that portion of the case for separate consideration. Four I'
possibilities present themselves: We can request the appointment of a separate Board, the appointment of a Special Master, the appointment of an Alternate Board Member, or a Technical Interrogator. In any case the new forum would consider the discrete question of whether any of the contentions currently before this Board, including both the so-called legal authority contentions and the contentions before us on remand, are substantively relevant to the proposed operation at 25% of full power. These bodies would be empowered to examine the relevance of such contentions based on LILCO'S technical risk assessment and on any evidence produced by other parties.2 The chief difference in their powers would be that a Board so appointed could decide, upon finding that none of the contentions had substantive relevance to 25% operation, that an initial decision could be issued and the request could be granted. If the contentions were evaluated in opposition to a favorable finding under 50.57(3), the request would be denied. In either case, the decision of the separate Board would be appealable. The authority of the l
2 0ur understanding of LILC0's intent is that it would attempt to prevail on a showing of immateriality of the unresolved contentions under 50.47(c)(1) based on its technical risk assessment and the uncontested elements of i emergency planning now in place. Therefore, the inquiry of the separate forum would focus on the risk assessment and not on final resolution of the j remaining contentions in the case. If LILC0 establishes that the plaint is :
sufficiently safe when restricted to a maximum of 25% power so that thr remaining contentions are immaterial to public health and safety, the !
contentions would be substantively irrelevant for the purposes of 50.57(c).
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Special Master, Alternate Board Member or Technical Interrogator would be J
limited to the advisory and assistant role established by 10 C.F.R. 2.722. I l
The matter of dealing with those contentions at 25% of power would be lef t to {
the present Board. We defer deciding what further procedures may be required t
at that point. It appears certain to us now that the examination of this question cannot be accomplished without some opportunity for the Governments to review both LILCO's original request and the Staff's analysis thereof. In the interest of expedition we therefore direct that the Staff resume its review of the proposal. Further, in order to focus the inquiry, we believe that the Governments must be given further opportunity to state with basis and specificity the ways in which any of their present contentions are relevant to l the proposed operation. These statements, of course, would necessarily await the publication of the Staff Safety Evaluation and a reasonable period for review by the Governments' experts. The precise schedule for review, submission of statements, and coment by the parties on such statements would be set by the proposed new Board, Special Master, Alternate Board Member or Technical Interrogator with due regard to the equities involved.
We therefore seek the parties comments on the relative advantages and disadvantages of requesting that the Chief Administrative Judge appoint an auxiliary Board, or in corisultation with him, a Special Master with the parties consent, or an Alternate Board Member or Technical Interrogator without it. 10 C.F.R. 2.722(a)(2)(3). The parties have of course given us their views on this matter previously, but this was before we decided that LILC0's motion is properly filed and that it is entitled to timely consideration of its motion under existing regulations without first seeking
-12 an exemption. With today's decision'it is no longer open to the parties to argue that LILC0 is not entitled to proceed on the course it has chosen, that no consideration at all be given its request or that its request be deferred indefinitely. We can and do additionally consider LILCO's economic concerns in deciding that as a procedural matter LILC0 is entitled to explore all possibilities afforded by NRC regulations for obtaining an operating license for Shoreham within a meaningful time frame. Therefore, it is no longer open ,
to the parties to argue that no proceeding be undertaken or that it be long deferred on grounds of excessive burden or lack of resources. Further proceedings by one of the above alternatives, unless LILC0 withdraws its request, are inevitable. Parties' views on the best alternatives for going forward may be changed by these developments and their recommendation on the narrcw issue we pose is warranted.
Analysis of Question 4 As is clear from the discussion above, in the cases that we regard as precedential concerning the matter of operation at powers less than full power, 50.47(c)(1) was deemed to operate through its "not significant for the plant in question" provision both by the Boards that decided the issue end by q the Commission. We believe that it should so function here.
j We have given consideration to LILCO's position that the other provisions of 50.47(c)(1) may also afford the requested relief. The position of both Staff and Governments is that the notion of " adequate interim compensating action" was meant to cover the situation where provisions in the emergency x
ui-4 13 plans of one ' organization compensated for deficiencies in the preparedness of other organizations but was not meant to apply to whatever safety benefits that might result from operation of the reactor at restricted power levels.
We are persuaded by the briefings of the parties and our own review of the regulations that emergency planning regulations are promulgated as a matter of policy and that relief from the requirements of these regulations cannot generally be obtained based on probabilistic risk assessments that show low risk to public health and safety from restricted reactor operations. The Commission has of course devoted considerable effort to assuring that reactor operations even at 100% power have low risk to the public but still it requires energency preparedness.
The Commission has not spoken directly on this matter and there appears to be no precedential case law controlling. Additionally, LILC0 argues that restricted power levels are but one element among several which together would permit its motion to be granted uiider the adequate interim compensating action j provision-50.47(c)(1). This route therefore remains at least potentially open to obtain the relief sought if LILCO wants to pursue it although the burden may be a difficult one. j We also considered whether "other compelling reasons" could include 1
impending power shortages on Long Island as a basis for relief as espoused by )
LILCO. Power shortages may cost money; they may inconvenience people or threaten jobs or loss of industrial capacity. LILC0 has not alleged and we find no reason for believing that there are reasons, for granting the request under this provision, related to the public health and safety, at least at any I
level of significance likely to result from the near term unavailability of 1 1
4 14 Shoreham. Thus, LILC0's reliance on this provision of 50.47(c)(1) appears to be based principally on an economic argument. It is well established that relief from the Commission's safety regulations cannot be founded upon economic considerations. The Commission has clearly designated emergency planning as a matter required for protection of public health. Thus, we do not believe that it would be fruitful to pursue a restricted power license for Shoreham based on the possibility of power shortages on Long Island, because even if true beyond question, relief could not be granted for that reason alone. If safety related reasons exist for granting a license to operate at 25% power, they will have to succeed on their own merit under the regulations without assistance from economic considerations.
Conclusion LILC0 has the right to pursue operation at 25% of full power by invoking 50.57(c) and using 50.47(c)(1) in the latter's "not significant for the plant in question" provision to satisfy the requirements of 50.57(a)(3) as required under50.57(c). The Governments, however, have the right to be heard to the extent that their contentions are relevant to such operation.
In order to assure all parties' rights in this proceeding, we direct that the Staff resume its review of LILCO's proposal, and we direct that all parties comment upon the relative desirability of appointing a Special Master, another Board, an Alternate Board Member or Technical Interrogator to direct the inquiry into whether there are extant contentions in this case which are substantively relevant to the proposed operation at 25% of power. If a
i 15 Special Master .is _ appointed such Special Master would be empowered only to recommend to this Board whether there is such relevance to the contentions presently before us. If a Board is appointed, such Board would be empowered to grant LILCO's request upon a finding that no such contentions existed or, if relevance is found, to deny LILC0's motion. If the motion is denied, this Board will seek the views of the parties as to whether it would be preferable to proceed with resolution of emergency planning contentions for 25% power or for 100% power in the posture of the case as it then exists. If an Alternate Board Member is appointed, that alternate will submit a report to the Board which will be advisory only, and if a Technical Interrogator, that person will assist the Board in avaluating evidence and preparing a suitable and complete record. This Board will retain jurisdiction over resolution of existing emergency planning contentions at all times.
ORDERED:
- 1. LILC0 is entitled to proceed with its request for 25% power operation i
under 10 C.F.R. 50.57(c).
- 2. Interyenors are entitled to be heard on the relevance of their i contentions to LILC0's request. t
- 3. The Staff is directed to proceed with a review of LILCO's 25% power request.
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- 4. The parties are directed to recommend to the Board by January 22, 1988 on the appointment of a separate Board, a Special Master, an Alternate Board Member, or a Technical Interrogator to consider LILCO's 25% power request.
THE ATOMIC SAFETY AND LICENSING BOARD m
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ames P. Gleason, Chais9 nan ADMINISTRATIVE JUDGE s
1 /\A Jh r~y/mR. VAine ADMINISTRATIVE JUDGE J'([
(C)
W Frederick J. Sh ADMINISTRATIVE JUDGE O !
Dated at Bethesda, Maryland this 7th day of January, 1988.
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