ML20235T354

Memorandum to Parties.* by 870813 Order,Commission Referred to Board for Disposition Lilco Motion Seeking Appointment of New Licensing Board & Approval of Schedule for Consideration of Util Request to Operate at 25% Power.Served on 871008

ML20235T354
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/06/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:
References
CON-#487-4576 87-553-04-SP, 87-553-4-SP, OL-6, NUDOCS 8710130056
Download: ML20235T354 (10)

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-UNITED STATES OF AMERICA.

NUCLEAR REGULATORY CONMISSION . .

ATOMIC' SAFETY AND LICENSING BOARD.

Before Administrative Judges: jfFf 5C

^y ' "'i Morton B. Margulies, Chairman.

Dr. Jerry R. Kline Mr. Frederick J. Shon.

SEWED OCT -81987 In the Matter of Docket No. 50-322-OL-6 (25% Power)

LONG ISLAND LIGHTING COMPANY l (ASLBP No. 87-553-04-SP)

(Shoreham Nuclear Power Station, l October 6, 1987 Unit 1) )

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MEMORANDUM TO THE PARTIES By Order of August 13, 1987, the Commission referred to this ,

Licensing Board for disposition LILCO's motion seeking the appointment of a new licensing board and approval of an expedited schedule for the consideration of the utility's request for approval to operate Shoreham at 25% power. A preliminary reading of the motion and related filings has raised a number of significant questions which the Licensing Board wants to have resolved before fully considering the motion. In order to do this the Board wishes to be briefed by the parties on the questions raised. The briefing should be directly on point and this procedure should not be used as a means to attempt to again litigate matters that

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have been decided or are otherwise pending before the Licensing Board for consideration.

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2 On ' April 14,1987 LILC0 moved the Comission for imediate and expedited consideration and disposition of its " Request for Authorization to Increase Power to 25%" (Request). Applicant termed its motion extraordinary. The request to authorize Shoreham to operate at 25% power was made wholly under the provisions of 10 C.F.R. 50.47(c).

After review, the Comission on June 11, 1987, in a Memorandum and Order, in CLI-87-04 found that:

LILCO's request introduces a series of new material factual (sic) into this already complicated and prolonged proceeding, but neither LILCO nor the NRC Staff has offered any suggestion as to how these factual issues

- can possibly be resolved before the end of this summer if we follow our normal adjudicatory hearing procedures in 10 C.F.R. 0 50.57(c) and 10 C.F.R. Part 2, Subpart G. LILCO may be suggesting some different decision procedure for its motion, but has made no specific suggestion in this regard and has offered no explanation of how the Commissior, may lawfully circumvent its usual rules for decisions.

The Comission then denied LILCO's request for a 25% power license stating, "LILCO may refile its request under 10 C.F.R. 50.57(c) with the Licensing Board when and if it believes that some useful purpose would be served thereby."

On July 14, 1987, LILCO refiled its Request with this Licensing Board. Applicant stated it was being done in accordance with CLI-87-04 ,

and was pursuant to 10 C.F.R. 50.57(c). However, aside from stating that the request was being made pursuant to 50.57(c), there was no change made in the motion that had been previously filed, exclusively under 10 C.F.R. 50.47(c). This Board was requested by LILCO not to take any action on the motion pending the Commission's action on the

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simultaneously filed motion asking the Comission to appoint a new licensing board and to approve an expedited schedule for the consideration of LILCO's request for approval to operate Shoreham at 25%

. power.

The Comission in its order of August 13, 1987 indicated that the motion before it was misdirected and referred it to this Licensing Board for appropriate action.

The first issue on which the. Licensing Board seeks briefing by the

. parties is on whether LILCO has complied with the Comission's decision in CLI-87-04 allowing it to refile its request for a 25% power license under 10 C.c.R. 50.57(c), when LILCO merely refiled a motion wholly directed to the regulatory requirements of 10 C.F.R. 50.47(c), merely stating it was being submitted pursuant to 10 C.F.R. 50.57(c).

As the Licensing Board understands 10 C.F.R. 50.47(c) and 50.57(c),

they are to be employed for accomplishing different purposes and they possess different standards that must be met to satisfy their requirements.

10 C.F.R. 50.47(c)(1) provides that failure to meet the applicable standards set forth in paragraph (b), (the 16 emergency planning )

requirements for onsite and offsite emergency plans), may result in the Comission declining to issue an operating license; however, an l

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applicant is given the opportunity to satisfy the Comission "that l

l deficiencies in the plans are not significant for the plant in question, I

that adequate interim compensating actions have been or will be taken promptly, or there are other compelling reasons to pennit plant i

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operation." The Commission promulgated the regulation so that if there were some deficiency in the plan interim operation could be allowed when protection of the public, while not optimum, was adeouate for a limited -

period of time. It was contemplated that the Commission in having before it State plans, local plans, and licensee plans would determine whether features of one plan can compensate for deficiencies in another plan so that the level of protection for the public health and safety is adequate. See: Consolidated Edison Company of New York (Indian Point, Unit No. 2), Power Authority of the State of New York (Indian Point, Unit No. 3), CLI-83-16, 17 NRC 1006, 1010, 1011. A question arises as to whether if an applicant were-issued a license under 10 C.F.R. 50.47(c).to conduct operat4*as at less than full power, the less than full power operations could be considered as part of an adequate interim compensating action in view of what the Commission stated interim compensating actions are. This is a matter that should be addressed by the parties.

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.

It appears to the Board, that Applicant in attempting to make a case for a 25% power authorization ignored and did not address major requirements cf 10 C.F.R 50.57(c), the section of the regulations that specifically concerns applications authorizing operations short of full power operation. Applicant did not modify the motion to address the

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l requirements of 50.57(c) even after the Connission advised that the motion could be refiled under that section if it continued to want the license.

As pertinent,10 C.F.R. 50.57(c) provides as follows:

(c) An applicant may, in a case where a hearing is held in connection with a pending proceeding under this section make a motion in writing, pursuant to this '

paragraph (c), for an operating license authorizing low-power testing (operation at not more than 1 percent of full power for the purpose of testing the facility),

and further operations short of full power operation.

Action cn such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized. Prior to taking any action on such a motion which any party opposes, 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.

The matters referred to in paragraph (a), as pertinent, are findings that the facilities will operate in conformity with the

application, the Atomic Energy Act and the Commission's rules and regulations, and that there is reasonable assurance that the activities authorized can be conducted without endangering the public health and safety and will be conducted in compliance with the regulations in the chapter.

Applicant presented no meaningful discussion of the extent to which the existing contentions are relevant to the activity to be authorized.

Considering the request for expedited handling, it would be expected

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6 movant would have treated with this important issue early on. LILCO attached no importance to the unresolved contentions.

In its Request (p.16), Applicant considered the unr? solved offsite emergency planning matters to be minor deficiencies, that are remediable and represent no-bar to a full power license. The Licensing Board does not consider them to be minor deficiencies. Only after further hearing can it be determined whether the fatal flaws the Licensing Board found are remediable and not a bar to the issuance of a full power license.

Applicant misconstrues the current record. LILCO acts as if it received a reasonable assurance finding on offsite emergency planning and all that there is left to do in that regard is to tidy up some minor deficiencies. To the contrary, a no reasonable assurance finding was made by this Licensing Board. Although the proceeding was remanded for further hearing by the Comission in CLI-86-13, as regards the fatal flaws- found, they were never resolved in Applicant's favor. They are yet to be decided albeit employing other considerations. Applicant also ignores the pending issue of the adequacy of the emergency planning exercise and its ramifications, a matter before the OL-5 licensing board.

The above Licensing Board finding as to LILCO incorrectly interpreting the record was contained in our September 17, 1987 Memorandum and Order ruling on Applicant's motion of March 20, 1987 for summary disposition of the legal authority issues. Applicant's claim that its plan complies with NRC requirements was found to be contrary to the record (p. 24). Because this Licensing Board finding was made

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. subsequent to all of the subject filings under consideration, the partiet should brief its effect on the current motions.

The briefing by the parties should cover whether Applicant's -

request for a 25% power authorization addresses the requirements of 10 C.F.R. 50.57(c) and the extent, if any, to which it is deficient, and whether Applicant has in fact filed its request pursuant to 50.57(c), as called for by the Commission. The parties should further address whether or not satisfying the requirements of 50.57(c) and obtaining approval for operations short of full power is a prerequisite before it can be demonstrated to the satisfaction of the Commission, under 50.47(c) that deficiencies in the plan are not significant for the plant in question. Is the Applicant with its Request bypassing'an essential step in not proceeding initially to satisfy 50.57(c)? Other matters to be briefed are if the parties are to address unresolved contentions

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before a license for operation at less than full power may be granted under 50.57(c) can the contentions be resolved short of hearing them in the full power emergency planning proceeding? What effect does this 1

have on the request to handle the 25% power application under an  ;

expedited schedule?

Major support of Applicant's Request for a 25% power license is its claim that a probabilistic risk assessment demonstrates that the probability of any prompt offsite injury as a result of an accident at Shoreham, operating at 25% power, even if no protective action is taken, is vanishingly small and th6.t the risk and consequences of accidents at

8 25% power are so greatly reduced that any remaining unresolved emergency issues become entirely insignificant (p. 5).

The Licensing Board wants to be briefed by the parties on whether such an approach is acceptable to the Commission as a method to overcome emergency planning deficiencies or to bypass the regulations on offsite emergency planning. More'particularly see philadelphia Electric Company j

'(Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 713 where the Appeal Board said, "The Commission's emergency planning regulations are premised on the assumption that a serious accident might occur . . ." and ". .,. a possible deficiency in an emergency plan cannot be properly disregarded cequse of the low probability that action pursuant to the plan will ever be necessary." The Appeal Board relied c th$ Commission decision in Southern' California Edison Company, 3 et al. (San 090fre Nuclear Generating Station, Unit, 2, and 3), '

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CLI-83410.)17NNb528,533,,rly'dinpartonotherq,tpunds,GUARDv. 1

.3 NRC, h53 F.75.1144 (1980 O' The C,obaission stated:

> M underlying assumption ofjthe NRC's emergency pkncing regulations in 10 C.F.R. 50.47 is that, ~

j despite application of strin' gent safety measures, i A serious nuclea taccic1nt may occur. This I presumes that oMsPg ti;cf viduals mex become contaminated with radioactive material or may be' j l; n - f exposed to dangerous levels 00 radiation or '

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perhaps both 7. . . Since a range of ataidents

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-) with win'ely #.8 ffering offsite consequence'l can be b" vortulaW, the regulatid does not depeno' on the i , anhption.4 hat a particular type of accident j m.ty or will occur. I

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t See i h o part 50, Statements of Considera_ tion, 45 FR at 55403,. col.

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l it, where Ahs Ceemissiod *$ its Rationale for the Final Rules statcd:

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It is clear based on the various official reports described in the proposed rules (44 FR 75169) and the-public record compiled in this rule-mating, that onsite and offsite emergency preparedness as well as proper siting and engineered design features are needed to protect the health and safety of the public. As the Comission reacted to the accident at Three Mile Island, it became clear that the protection provided by siting and engineered design features must be bolstered by the ability to take protective measures during the course of an accident . . .

The Request also asks that another ifcensing board be appointed.

In order to have another licensing Board hear the application for a 25%

power. license, it is necessary that the subject matter be sufficiently discrete so that the assignment can be made. This Licensing Board requests that the parties revisit this issue and brief the Board taking into' consideration:

(a) the requirement of 50.57(c) that due regard must be given to the rights of the parties to be heard to the extent that their contentions are relevant to the activity to be authorized; (b) the Licensing Board's determination that it is incorrect for  ;

Applicant to claim that there are only minor deficiencies in its plan.

Fatal flaws were found in the plan, and although these matters were l remanded for further consideration they are yet to be resolved; and (c) Applicant's claim that it has met the conditions required to satisfy 50.47(c) for the issuance of an operating license. It states this is accomplished by demonstrating in its Request that the implementation of its utility plan by (1) a well organized and well  !

J trained response organization and (2) by local governments on a "best i

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efforts" basis, coupled with (3) a 25% power limitation, will in toto more than constitute interim compensating measures (p. 4). In view of the fact that Applicant binds up these elements with one another and (1) and (2) are currently being litigated before other licensing boards, how can the issue of authorizing 25% power license be considered discrete from the other matters in litigation?

l The parties should submit the requested briefings to the f.icensing l

Board on or before October 30, 1987. Responses may be filed by November 9, 1987.

FOR THE ATOMIC SAFETY AND LICENSING BOARD h_,

• A -v/

orton B. M6rgulies, Ch rman l ADMINISTRATIVE LAW JUDG Dated at Bethesda, Maryland this 6th of October, 1987.

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