ML20236D228

Responds to ASLB 871006 Memo Raising Issues Re Util Request for Authorization to Operate at 25% Power.Util Should Restructure Motion to Directly Address Provisions of 10CFR50.57(c) for Existing Contentions

ML20236D228
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/22/1987
From:	Lo R Office of Nuclear Reactor Regulation
To:	Boger B Office of Nuclear Reactor Regulation
References
NUDOCS 8710280077
Download: ML20236D228 (6)

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1. ja aroog'o UNITED STATES

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WASHINGTON, D. C. 20555 October 22, 1987 MEM0RANDllM FOR: B. A. Boger, Assistant Director for Region I Reactors Division of Reactor Projects I/II THRU: W. R. Butler, Director Project Directorate I-2 Division of Reactor Projects I/II FROM: .Ronnie Lo, Project Manager Project Directorate I-2 Division of Reactor Projects I/II

SUBJECT:

INPUT FOR STAFF RESPONSE TO BOARD MEMORANDUM RE: SHOREHAM, 25% POWER REQUEST Introduction On-October 6, 1987, the OL-3 Licensing Board issued a Memorandum to the.

parties related to LILCO's request for authorization to operate Shoreham at 25% power. The licensing Board raised several issues and requested the parties to submit responses by October 30,1987(seeenclosure1). The purpose of this memorandum is to discuss those issues and to provide NRR input for use in preparation of the staff's response.

We recommend a discussion of the views reflected below within NRR and with OGC so that the NRR views may be reflected in the upcoming responses to be filed by OGC.

Issues Identified by The OL-3 Board The issues identified by the OL-3 Licensing Board are outlined and discussed as follows: j

1. Issue : Has LILC0 addressed the major requirements of 10 CFR 50.57(c)? In particular, the Board states that, "(the)

Applicant presented no meaningful discussion of the extent to which the existing contentions are relevant to the activity to be authorized" (Memorandum at 5).

Discussion : In its earlier filing under 10 CFR 50.47(c), which was resubmitted in its entirety before the OL-3 Board, LILC0 made an attempt to address the existing contentions and their relevance to operation at 25% power. In Section III, Significance of Remaining Emergency Planning Issues at 25%

Power, LILC0 provided discussions on the Legal Authority, Reception and Congregate Care Centers, EPZ size, Hospital Evacuation, and School Buses and Drivers issues. However, LILCO's discussion of these contentions may appear to be superficial and lacking an in-depth analysis on why "they 8710200077 871022 PDR ADOCK 05000322 F PDR

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are clearly insignificant to. the effectiveness of IILC0's. i plan,'and thus to'public health and safety". It appears that LILC0 did;not address'other contentions.. .It appears-4 ,

that LILCO should restructure. its motion to directly -j addressLthe provision of-50.57(c) onl existing contentions  ;

in detail in order for the Board to make-an initial  !

decision.

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2a. Issue -Are meeting the requirements of 50.57(c) and obtaining

. approval:for operations ~ short of full power prerequisites to demonstrating to the' satisfaction of the Commission,

'.under 50.47(c):that deficiencies.in the plan are'not-

.significant -for the plant' in question? (Memorandum at. 7)-

i Discussion : Under the' provision of '50.57(c), the presiding _ officer -

shall make. findings including whether there is' reasonable d assurance that the activities authorized can be conducted "

y without endangering _ public-health and safety; lit appears .

that a reaso.nable assurance finding can only be reached if

.the alleged deficiencies in the plan can.be determined to. -l

.be insignificant, and vice versa. The significance of thel alleged deficiencies in the plan can be reviewed in light of the basis 1for the rule as 5% low power' operation. . The rule is not based on the lack of need for offsite ,

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c evacuation.. Instead, the Commission's basis as set forth in 47 FR 30 232-36 (1982)' relies on 1)' reduced fission ')

product ~ inventory, 2) increased time for' operator action and 3). reduced _ capacity requirements for mitigating i

!, . systems. In essence, the' basis-can be interpreted as

veduction~to challenges to the' emergency plan'.. LILCO should be provided ,sn opportunity to demonstrate how-operation at;25% puwer would reduce demands in evacuation and how itsfplan, in spite of alleged deficiencies, can be  !

determined te be adequate. i 2 b .' Issue : Is PRA acceptable to demonstr6te that deficiencies in the  !

plan are insignificant for 25%' power cperation?

Discussion : The Board believes that major support of the request is LILC0's claims relative to what its PRA demonstrates. The Board went on to cite two cases (ALAB-819 on Limerick and CLI-83-10 on San Onofre) where the Appeal. Board and the l Commission apparently ruled that a possible deficiency in an emergency plan can not be disregarded because of the low  !

probability that action pursuant to the plan will ever be i It should be noted that LILC0's PRA is merely necessary.

L one method to estimate the offsite consequences of severe l- accidents. An alternative deterministic safety evaluation  ;

of Shoreham  !

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. 3-4 system responses during accident scenarios would also yield i the extent of offsite consequences. The question germane j r

to public health and safety on what are the offsite j consequences and what are the needs on emergency planning-under those circumstances can also be obtained by such an "f alternative analysis. l

3. Issue : 'Are there " adequate interim compensating actions (that) have been or will be taken promptly..." in accordance with 10 CFR 1 50.47(c)(1)?- ,

Discussion : 'The Board points out that "it was contemplated that the ,

Commission in having before it. state plans, local plans and l 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"-(Memorandum at 4). This rather narrow interpretation of " interim compensating actions" is subject j to controversy. LILCO holds that the 25% operating  ;

limitation constitutes adequate interim compensating H measures. .Moreover, even with the interpretation that the

" interim compensating actions" may only be applied to the plen, the fact that there is a limitation of the power level (and if it can be demonstrated that there is a i corresponding significant reduction on the demands of 1 emergency planning) can be construed as' having a beneficial i impact on' the quality of the plan when implemented under a I condition of reduced demands, i.e., compensating actions

. being a reduction on the demands of the plan. l

4. Issue : Should the Board grant the request to appoint another .l licensing board? '

Discussion : The Board points out that the subject matter should be sufficiently discrete so that the assignment can be made.

In addressing the requirements of 50.57(c) with regard to  !'

existing contentions, the OL-3 Board which is charged with the majority of the existing contentions before it appears to be the logical tribunal in rendering decisions.

However, there are a number of specific narrow issues which i are unique to the consideration for the 25% power request.  ;

For example, the technical issues on the safety of l

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j ioperation at 25%' power.'and the. consequences.of' accidents- r

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' d Py' ' . Improvements'of3 safety; features:(claimed by LILCO) form the #

, #  : basis of.LILCO's; reques0: :This ' technical l basis could be'

( . subject-tochallengesand'contentionsby.thepartied' der s

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.50.57(c). ;It appears thatsthe'useLof Special Martersi W' as provided:for under!10iCFR 2.722(a)(2)qay. I0 CFRendeliberation/o y' :2.722(a)cprovides"thatspecial:assistantsmayfunction N 1 .as. ..(2) uponLconsent 'of all the parties,. Spe;1al . Masters. am l tol hear; evidentiary presentations by all parties on -

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, l specific' technical- matters ..." (emphasis added).

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o y jroposed'Staffposition $

LBasedon;theabovediscussion'oftheissuesraisedbythe. o Board,thefollowing:

suararizes'theLpropom 6 staff w sition:'

l'. - ' LILCO.has' not addresseMthe existing contentiob with respect to :the.

proposed operation at 25% power.?tILCO's request under 50.57(chshould either be rejected ferJnot being in compliance with the requirements ~

of 50.57(c) or'LILC0 should-be pro'vided with an l opportunity to restructure g j

-and supplement its motion.. -f e

'2. In order for.the-Board to arrive et a reasonable assurance finding under 60.57(c), the alleged deficiencies fn the plan:has to be detennined to be ,l o ~ insignificant. S'ich determinatica should take into consideration j

. the' unique: circumstance of thef ordposed 25% power limitation. LILCO's - i l

technical basis for its claims should be examined and the Board-should J structure an adjudicatory process for such an' examination. ]'

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3. . .The Board should ' recognize thel LILC0 cishns of fundamental safety significance (i.e. risk reduction) associated with* 25% power (because of- a condenser bypass capacity). LILC0 also claims that the impacts on ,

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accident consequences and requirements of offsiteeresponses ~are of the type,that. formed the basis in the Commission!s rule on 5% power.- inis alleged substantial

reduction in the risks associated with full powr operation-should be considered as-having impacts on the emergency plan,=

1.e., equivalent to the compensating actions pursuant to 50.47(c)(1).

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4. The Board should appoint a Special Master pursuant to 2.722(a) for I expediting the consideration of the narrow technical issues pertaining to the safety of operation at 25% power and the consequences of accidents i under the power level limitation.

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Ronnie Lo, Project Manager.  ;

Project Directorate I-2 Division of Reactor Projects I/II i

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Enclosure:

As stated 4

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-4. The Board should appoint a Special. Master pursuant to 2.722(a) for expediting the consideration of the narrow technical issues pertaining to the safety of operation at 25% power and the consequences of accidents under the power level limitation.

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Ronnie Lo, Project Manager Project Directorate I-2 Division of Reactor Projects I/II

Enclosure:

As stated DISTRIBUT0N

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. 4576 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: jF IQ,{ } ..;. ,

Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon SEED OCT -81987

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In the Matter of ) Docket No. 50-322-OL-6

) (25% Power)

LONG ISLAND LIGHTING COMPANY )

) (ASLBP No. 87-553-04-SP)

(Shoreham Nuclear Power Station, )

) October 6, 1987 Unit 1)

)

MEMORANDUM TO THE PARTIES By Order of August 13, 1987, the Connission 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 l 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 questiont ,

I raised. The briefing should be directly on point and this procedure l l

should not be used as a means to attempt to again litigate matters that have been decided or are otherwise pending before the Licensing Board j

for consideration, D h2 .

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j On April 14,1987 LILC0' moved the Comission for imediate and l l

expedited consideration and disposition of its " Request for 1 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).

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After review,. the Comission on June 11,1987 - in a Memorandum and

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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

- -sumer if we follow our normal adjudicatory hearing procedures in 10 C.F.R. I 50.57(c) and 10 C.F.R. Part 2, Subpart G. LILCO may be suggesting some different l

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_ decision procedure for its motion, but has made no l specific suggestion in this regard and has offered no explanation of how the Comission 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 c

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 M G. Applicant stated it was being done in accordance with CLI-87-04 andwaspursuantto10C.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 under10C.F.R.50.47(c). This Board was requested by LILCO not to take any action on the motion pending the Comission's action on the

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- simultaneously filed motion asking the Commission to appoint a new i

. . licensing board and to approve an' expedited schedule for the

- consiNration of LILC0!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 l action.

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

. parties is on whether.LILCO has coglied with the Comission's decision A

in CLI-87-04 allowing it to refile its request for a 25% power license -

. under 10 C.F,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. 50.4 (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 Connission declining to issue an operating license; however, an applicant is given the opportunity to satisfy the Connission "that deficiencies in the plans are not significant for the plant in question, j

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

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f operation." The Comission promulgated the. regulation so that if there l

were some deficiency in the plan interim operation could be allowed when protection of the' public, while not optimum, was adeouate for a limited L

1 period of time. It was contemplated that the Comission 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 l adequate. See: Consolidated Edison Company of New York (Indian point, i 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 l

to whether if an applicant were issued a license under 10 C.F.R. 50.47(c) to conduct operations at less than full power, the less than l 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 l

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

license.

Aspertinent,10C.F.R.'50.57(c)providesasfollows:

(c) An applicant may .in a case where a hearing

'is held in connection.with a pending proceeding under l 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 on 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

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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 Comission's rules and )

regulations, and that there is reasonable assurance that the activities authorized can be conducud without endangering the public health and j safety and will be conducted ir compliance with the regulations in the chapter.

Applicant presented ne meaningful discussion of the extent to which the existing cc.tenthns are relevant to the activity to be authorized.

Considering the request for expedited handling, it would be expected l

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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 unresolved 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 f are remediable and not a bar to the issuance of a full power license.

i Applicant misconstrues the current record. LILCO acts as if it received .

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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 i

exercise and its ramifications, a matter before the OL-5 Ifcensing 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 ,

sumary 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 parties 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 l

whether Applicant has in fact filed its request pursuant to 50.57(c), as called for by the Connission. 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 l

50.47(c) that deficiencies in the plan are not significant for the plant l; in question. Is the Applicant with its Request bypassing an essential l step in not proceeding initially to satisfy 50.57(c)? Other matters to l .

be briefed are if the parties are to address unresolved contentions 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 have on the request to handic the 25% power application under an l expedited schedule?

I 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 that 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 1

such an approach is acceptable to the Comission as a method to overcome emergency planning deficiencies or to bypass the regulations on offsite emergency planning. More particularly see philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 713, where the Appeal Board said, "The Comission'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 because of the low probability that action pursuant to the plan will ever be necessary." The Appeal Board relied on the Comission decision in Southern California Edison Company, et al. (San Onofre Nuclear Generating Station, Units 2_ and 3),

CLI-83-10, 17 NRC ST:8, 533, rev'd in part on other grounds, GUARD v.

NRC, 753 F.2d 1144 (1985). The Comission stated:

The underlying assumption of the NRC's emergency planning regulations in 10 C.F.R. 50.47 is that, despite application of stringent safety measures, a serious nuclear accident may occur. This presumes that offsite individuals may become contaminated with radioactive material or may be exposed to dangerous levels of radiation or perhaps both . . . . Since a range of accidents with widely differing offsite consequences can be postulated, the regulation does not depend on the assumption that a particular type of accident may or will occur.

See also Part 50, Statements of Consideration, 45 FR at 55403, col.

3, where the Comission in its Rationale for the Final Rules stated:

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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-making, 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 licensing 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 4

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)theLicensingBoard'sdeterminationthatitisincorrectfor Applicant to claim that there are only minor deficiencies in its plan.

Fatal flaws were found in the plan, and although these matters were remnded 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 trained response organization and (2) by local governments on a "best

F 10 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?

The parties should submit the requested briefings to the Licensing Board on or before October 30, 1987. Responses may be filed by November 9, 1987.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Morton B. Margulies Chynnan ADMINISTRATIVE LAW JUDGE Dated at Bethesda, Maryland this 6th of October, 1987.

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