ML20236E640
| ML20236E640 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/29/1987 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#387-4143 OL, NUDOCS 8708030033 | |
| Download: ML20236E640 (12) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 Jul. 30 A9 :53 i
BEFORE THE COMMISSION
[0 Chi - ii., '
B F.. 4 In the Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
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(Shoreham Nuclear Power Station,
)
Unit 1)
)
l NRC STAFF RESPONSE TO LILCO MOTION FOR DESIGNATION OF LICENSING BOARD AND SETTING EXPEDITED SCHEDULE TO RULE ON LILCO'S 25% POWER REQUEST George E. Johnson j
Counsel for NRC Staff July 29,1987 8708030033 870729 i
PDR ADOCK 05000322 i
G PDR j
i i
UNITED STATES OF AMERICA i'
NUCLEAR REGULATORY COMMISSION I
BEFORE THE COMMISSION in the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
)
(
J (Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF RESPONSE TO 3
LILCO MOTION FOR DESIGNATION OF LICENSING BOARD AND SETTING EXPEDITED SCHEDULE TO RULE ON LlLCO'S 25% POWER REQUEST
)
1.
INTRODUCTION i
. On July 14, 1987, Long Island Lighting Company (LILCO) served on the Commission its " Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25% Power Request Motion" (" Motion").
This Motion followed the Commission's denial, June 11, 1987, of LILCO's April 14, 1987 request for 25% power operation and motion for expedited consideration.
That denial was based on the Commission's finding that there was no prospect for resolving the new material factual issues introduced by LILCO's 25% power request, consistent with normal adjudicatory requirements, in time to grant the relief LILCO sought.
CLI-87-04, slip op. at 2.
The Commission noted, however, that "LILCO may refile its request under 10 C.F.R. 9 50.57(c) with the Licensing Board when and if it believes that some useful purpose would be served thereby." Id.
In its Motion, LILCO notes that it has filed its 25% power motion with the Licensing Board in the OL-3 docket (the "Margulics Board").
Motion, at 1.
However, LILCO argues that it is not clear that the Margulies Board has jurisdiction over the issues raised, and, in any event, only a newly i
designated Licensing Board would be able to give the requested expedited consideration of its 25% power request.
Id.,
at 2.
As grounds for Commission designation of a new board, LILCO argues that both extant boards (OL-3 and OL-5) are "already fully engaged" and there is "little realistic j
prospect" of their early consideration of the 25% power request.
Id., at 6, J
7-9.
In addition, LILCO argues that the Motion "does not clearly raise l
l emergency planning issues", and there is no need for common membership l
between the emergency p!"anning boards and a board which might be appointed to hear the 25% authorization request.
Id.,
at 7,
9-10.
LILCO also reiterates arguments made in its April 14, 1987 filing that expedition is needed, id., at 10-13, and proposes an expedited and truncated schedule for i
impicmentation by a newly designated Licensing Board,
id., at 13-16. If Because the instant Motion is inconsistent with the express instruction to LILCO to direct any further request for relief to the Licensing Board, the l
Motion should be denied.
However, in the event the Commission determines to re-visit the substance of LILCO's arguments for designation of a new board 1
l 1
l l
l 1/
While conceding that authority to appoint new board may rest with the l
Licensing Board Panel Chairman, LI LCO questions whether he could impose or recommend the expedition LILCO seeks.
LILCO argues that, in any event, action by the Commission is authorized, and would avoid delay in resolution of these matters.
Motion, at 2, n.4.
Given the express direction to LILCO to refer further requests to the Licensing Boa rd,
there can be, little doubt that the Licensing Board has jurisdiction of this matter.
l 1
l l
-__________ _ ____ _ ______ _ and for expedition, the Staff sets forward below a number of reasons which warrant denial of such reconsideration.
t1.
DISCUSSION A.
The Commission Has Already Decided that Relief Related to the 25%
Power Request is to be Sought before the Licensing Poard Pursuant to 10 C.F. R. 6 50.57(c).
By its June 11, 1987 Memorandum and Order, the Commission determined that the 25% power request must be considered under the provisions of 10 C.F.R. 6 50.57(c) and Subpart G to 10 C.F.R. Part 2.
As noted in the Staff's April 29, 1987 response to the original LILCO motion for expedited consideration, 5 50.57(c) contemplates that such motions are to be directed to the presiding officer, who, after giving any party the right "to be heard to the extent that his contentions are relevant to the activity to be
- o authorized... ", will make appropriate findings in the form of an initial decision.
The Commission's June 11, 1987 Memorandum and Order expressly stated that LILCO "may refile its request under 10 C.F.R. 6 50.57(c) with the Licensing Board when and if it believes that some useful purpose would be served thereby".
Id., at 2.
Thus, the Commission has already decided that under Commission regulations,
further consideration of a
25%
power authorization request should be upon application to the Licensing Board, pursuant to " normal adjudicatory procedures." Implicit in that decision is the determination that,,under 10 C.F.R. 6 50.57(c), the Licensing Board which has considered the contentions still pending, should hear from the parties concerning the relevance of such contentions to the activity sought to be authorized.
Also implicit is the determination that procedural questions, such
):
_4 as the use of expedited procedures, are properly addressed to the presiding cfficer.
As a result, LILCO's Motion is contrary CLl-87-04, and should have been directed to the Licensing Board.
B.
The Procedural issues Raised in LILCO's Motion are Properly Referred to the-Licensing Board 1
In support of its request for a new Licensing Board, LILCO argues that disposition of its 25% power request "neither require (s) further litigation of outstanding emergency planning issues nor depend (s) on their prior dispositive resolution." Motion, at 9.
However, it must be remembered that the very relief that LILCO seeks depends on an affirmative demonstration, l
based on at least one of the three criteria contained in to C.F.R.
5 50.47(c)(1), that notwithstanding failure to meet one or more of the emergency planning standards in 10 C.F.R. 5 50.47(b), "there is reasonable' assurance that adequate protective measures can and will be taken..." under 10 C.F.R. 550.47(a)(1).
Conversely, under 10 C.F.R. 5 50.57(c), a party j
contesting an application for operation short of full power is given an opportunity to demonstrate that there are indeed contentions pending before tne licensing board that are relevant to the activity sought to be authorized.
It follows that Interveners here must be given the opportunity "to be heard" concerning whether deficiencies in emergency planning currently being litigated in the OL-3 and OL-5 proceedings are relevant and material to operation of Shoreham at 25% power, and whether such deficiencies prevent making the necessary finding of " reasonable assurance".
As a result, LILCO's argument that the issues raised in its 25% power request are so distinct from pending issues as to obviate the regulatory policy that the
i i
I l j licensing board hearing evidence on contentions preside over the 6 50.57(c) application is without merit.
Since there are evidentiary matters to be decided, the Commission's i
rules and policy dictate allowing the Licensing Board to initially deal with the difficult practical and legal questions which must be addressed at the threshold of consideration of the 25% power request.
Ventilation of l
I such matters before the Licensing Board will permit efficient disposition of procedural and evidentiary matters, while allowing any important questions of l
fact, law or policy to be concisely framed for Commission consideration if and when Commission review is necessary.
(See 10 C.F.R. 6 2.786) l LILCO argues extensively that expedition in the conduct of any proceeding on its Motion is essential, given (1) the completion of the facility, (2) the record of delay in completion of the licensing proceeding, (3) the need for electric power on Long Island, (4) national security considerations, and (5) the current availability and ongoing analysis of applicable technical and legal underpinnings for the 25% power request.
Motion, at 10-13.
l However, these arguments for expedition should not be considered in a "7cuum, implicit in the Commission's decision in CLl-87-04 is the recognition that the parties as well as the Commission have already committed enormous resources to this " complicated and prolonged proceeding."
CLi-87-04, slip op, at 1.
Even assuming LILCO were correct that the issues presented by its 25% power request were completely segregable from the ongoing emergency 9
l l
i j planning proceedings, 2/ the resource issue goes not only to the availability of the sitting licensing boards, but to _the availability of the parties.
Given the heavy commitment of litigation resources in the ongoing proceedings, it is not clear that the parties hav( the resources to proceed simultaneously with all the ongoing matters as well as a potentially complex and lengthy l
proceeding on the 25% power request, particularly where the'same issues and j
i witnesses are involved.
The Licensing Board is familiar with the procedural j
posture of each aspect of the proceedings on the OL-3 and OL-5 dockets.
Given this familiarity, it is most appropriate for the Licensing Board to evaluate whether its own work load and priorities, and those of the parties warrant the procedural steps LILCO seeks. 3/
LILCO's request for relief under 6 50.47(c)(1) also raises difficult legal 1
issues, the resolution of which may profit from first consideration before the Licensing Board.
Two issues which are presented are:
(1) Did the Commission, in adopting 6 50.47(c)(1),
contemplate a showing that (a) emergency planning deficiencies are not significant for the plant in question, or (b) adequate interim compensatory actions have been or will be taken, based on reductions in accident risks associated with reduced power levels?
And if not, is an exemption from.the requirements of 10 C.F.R. 6 50.47 needed?
2_/
As indicated above, that assumption is subject to substantial question.
-3/
It should be noted that the Staff is well along in its review of the technical support for LILCO's 25% power. request.
Although recently suspended, the Staff is prepared to. complete its evaluation in an expeditious manner.
However, Interveners have already claimed the need for substantially greater time to conduct their accident analyses.
Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO's Motion for Expedited Commission Consideration, at 22.
(2) Did the Commission contemplate issuance of a full-power license based solely on a finding of "other compelling reasons to permit plant operations,"
where those reasons involve an urgent need for power?
Examination of the Statement of Consideration for the 1980 revisions to i
the Part 50 emergency planning. requirements (45 Fed.
Reg.
- 55402, August 19, 1980), the. legislative history associated with those revisions, as well as the 1980 NRC Authorization Act (reviewed in LBP-83-22,17 NRC 608, 670-671 (1985),
628 g seq.), and the decisions in ALAB-818, 22 NRC 651, and CLl-86-13, 24 NRC 22, 29 (1986), raises these substantial issues, which should be initially considered by the Licensing Board.
i C.
Any Section 50.57(c) Hearing Should Be Conducted Pursusnt +o Normal Adjudicatory Procedures Should the Commission decide to consider LILCO's request for expedition and proposed schedule, Motion, at 10-16, the Staff believes there is good reason not to depart from normal adjudicatory procedures, in its Motion, LILCO has proposed a truncated procedure, eliminating completely the contention phase of the proceeding, and, in addition, has argued that LILCO has already met its burden of going forward with its case and thus need not file testimony.
Motion, at 13-14.
The Staff believes LILCO's proposals are not workable.
First, the 25% power request relles heavily on severe accident analyses to demonstrate that "very small risk [is] associated with operation at 25%,"
and "that emergency planning is unwarranted at distances beyond one mile from. the plant. " 4/
Although LlLCO does not request relief from the requirement.to plan for emergency response for a 10-mile emergency planning zone, the burden of its presentation is that, for Shoreham, the planning bases on which the 10-mile zone was premised, are satisfied at one mile from the plant if power operation is limited to 25%.
While the issue of need for offsite emergency planning appears straightforward as 'a general matter, this does not end the inquiry.
The analyses relied upon by LILCO, and which were under evaluation by the St
, are new, and the use of these analyses to establish levels of accident risk from the Shoreham plant has not previously I
been addressed. 5_/
The factual issues which may be raised in response. to the proffered analyses are not obvious, and contention. pleading or the l
equivalent is needed to focus and narrow the issues.
Early definition 1
i of ' the issues will speed and streamline both the discovery and hearing stages.
Testimony addressing clearly defined issues will take less time to l
hear than will testimony not focused on discrete issues.
Presumably the issues and the testimony must address not only the validity of LILCO's analyses, but also whether there are specific aspects of currently unresolved luues which may affect emergency response capabluties at the 25% power 4/
Request for Authorization to increase Power to 25%, April 14, 1987, at
~
59.
-5/
in fact, litigation of such issues was precluded in this proceeding.
See ALAB-832, 23 NRC 135,146-148 (1986) (generic accident analyses "were conducted to remove the need for site specific calculations....")
i 1 lev.i.
Failure to follow standard NRC practice would likely further complicate
)
\\
1 and prolong such a proceeding, and certainly would not be expeditious.
Other aspects of a prehearing schedule should await definition of the issues by a Licensing Board.' However, as LILCO recognizes, meaningful discovery depends on the availability of analyses of the LILCO studies 1
supporting its 25% power request. Discovery of the positions of parties other than LILCO will need to be commenced.
No persuasive basis has been f
provided to depart from the general proposition that overall regulation of a 6 50.57(c) proceeding is appropriately left to the Licensing Board, consistent with the regulations and the Commission's Statement of Power on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452 (1981).
In sum, the issues implicitly raised by LILCO's 25% power request are not susceptible to resolution without normal adjudicatory procedures for ac refining and exploring the applicability of properly raised contentions to the proposed activity, and LILCO's proposal to skip the contention phase and to treat LILCO as having already submitted opening testimony should be rejected.
Management of these matters is properly left with the Licensing f?oard.
lli.
CONCLUSION For the foregoing reasons, LILCO's Motion should be denied.
Respectfully submitted, b
rge E J son Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of July,1967
d i
- u.
ii UNITED STATES OF AMERICA f
NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
'h uwe in the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
)
J (Shoreham Nuclear Power Station,
)
Unit 1)
)
i CERTIFICATE OF SERVICE I hereby certify that copies of "N RC STAFF RESPONSE TO LILCO MOTION FOR DESIGNATION OF LICENSING BOARD AND SETTING j
EXPEDITED SCHEDULE TO RULE ON LILCO'S 25% POWER REQUEST" In the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of July,1987.
Morton B. Margulies, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*
Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor l
Atomic Safety and Licensing Board Executive Chamber j
U.S. Nuclear Regulatory Commission State Capitol j
Washington, DC 20555 Albany, NY 12224 rrederick J. Shon*
Jonathan D. Feinberg, Esq.
l Administrative Judge New York State Department of j
Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza 1
I Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley 111, Esq.
]
Federal Emergency Management Donald P. Irwin, Esq.
{
Agency Hunton f, Williams i
26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 l
New York, NY 10278 Richmond, VA 23212 l
l Douglas J. Hynes, Councilman Town Board of Oyster Bay l
Town Hall l
Oyster Bay, New York 11771 l
i 1
i Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
j Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys _at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor
)
1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy J
Office I
Atomic Safety and Licensing Agency Building 2 l
Appeal Board Panel
- Empire State Plaza j
U.S. Nuclear Regulatory Commission Albany, NY 12223 l
Washington, DC 20555 j
Spence W. Perry, Esq.
I Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management J
H. Lee Dennison Building Agency.
Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.
j North Shore Committee Attorney General of the State
]
P.O. Box 231 of New York l
Wading River, NY 11792 Attn:
Peter Blenstock, Esq.
Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.
General Counsel Office of General Counsel
' mg island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum, Esq.
Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743
[A George E. f ohnsy i
Counsel for NRC Staff l
1