ML20236L803
| ML20236L803 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/06/1987 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4787 CLI-87-04, CLI-87-4, OL-3, NUDOCS 8711110070 | |
| Download: ML20236L803 (22) | |
Text
.;. ;
47@ ' 11/06/87 6- 1 4~ DOCKEIE0
- USHRC UNITED STATES OF AMERICA g av 9 P159 i NUCLEAR REGULATORY COMMISSION l FFICE OF SM_TW l BE' FORE THE ATOMIC SAFETY AND LICENSING BOA KEi B Ck in the Matter of ) l
)
LONG ISI.AND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) ,
Unit 1) ) l NRC STAFF RESPONSE TO BOARD MEMORANDUM REQUESTING PARTIES' VIEWS ON QUESTIONS RAISED l l
BY LILCO 25% POWER AUTHORIZATION MOTION
- 1. INTRODUCTION -
In its October 8, 1987 Memorandum to the Parties (" Memorandum"),
the Licensing Board requested the parties to brief a number of questions relating to the legal sufficiency of LILCO's Motion for Authorization to l increase Power to 25%, filed with the Licensing Board on July 14, 1987, j as well as the Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25% Power Request, of that date, '
referred by the Commission to the Board through CLI-87-04, August 13, 1987.
The questions posed were as follows:
- 1. Whether LILCO has complied with the Commission's decision 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 reflied 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)? (Memorandum, at 3]
B711110070g7g6 ADOCK O PDR PDR o
0.50 1
- 2. Whether if an applicant were issued a license under f 10 C.F.R. 50.47(c) to conduct operations at less than full power, the less than full power operations could be considered )
l as part of an adequate Interim compensating action in view of {
i what the Commission stated interim compensating actions are. {
[M.at4]
1
- 3. The parties should brief [the effect of the Board's September 17, 1987 order finding Applicant's claim that its plan complies with NRC requirements was contrary to the record] on -l the current motions. [g. at 5-6] II
- 4. Whether Applicant's request for a 25% power authorization addresses the requirements of 10 C.F.R. 50.57(c) and the .
1 1
extent , if any to which it is deficient, and whether Applicant i 1
has in fact filed its request pursuant to 50.57(c), as called for by the Commission. [M. at 7]
- 5. 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 l '
l not significant for the plant in question. [ld.]
-1/ Question 3 is not separately addressed in the below responses, but.
has been taken into account in addressing the other questions.
l l
t__--_2._.___1 . . .. .
1 I
i
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- 6. Is the Applicant with its Request bypassing an essential '
step in' not proceeding initially to satisfy 50.57(c)7 [ld.] {
l d
- 7. If the parties are to address unresolved contentions before l 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? [M. ]
- 8. What effect does this have on. the request to handle the 25% power application under an expedited schedule? [ld.]
- 9. Whether [a probabilistic risk assessment] approach is acceptable to the Commission as a method to overcome emer-gency planning deficiencies or to bypass the regulations on offsite emergency planning. [M.at7-8]
- 10. Whether the subject matter of the 25% power application is sufficiently discrete to warrant appointment of another licensing board in light of the following considerations:
- 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;
l b, the licensing Board's determination that it is incorrect for Applicant to claim that there are only minor deficien-
-)
cibs in its plan; l
- c. Applicant's claim that it has met the conditions l I
required to satisfy 50.47(c) ' for the issuance of an )
l operating license, it . states this is accomplished by demonstrating in its ReCuest that the implementation of its ;
i utility plan by (1) a well organized and .well. treine i response organization and (2) by local . governments on a "best efforts" basis, coupled with (3) a 25% power limitation, will in toto. more than constitute interim l
l compensating measu res. . . In view of the fact that -i j
Applicant binds up these elements with one another and ]
(1) and (2) are currently ...being litigated before other licensing boards, how can the issue o'f authorizing 25% L power license be considered discrete . from the other niatters in litigation? [M. at 9-10]
The Staff has grouped the Board's questions so as to assist in its- l l
presentation of the ' issues ~, rather than addressing the . questions . ad -i seriatum, as propounded: by. the Board. The questions being answered are noted in the section headings 'and-the' text,'as app!! cable.
8
_ __..._ __ _ _ _ _1___._._ _ _ ._ _'
- 11. DISCUSSION A. Applicant's Compilance with the Provisions of 10 C.F.R.
Section 50.57(c) (Questions 1, 4, 5, and 6) 1
)
Questions 1, 4, 5, and 6 address whether Applicant's Motion is i
legally sufficient under the regulations. When Applicant's original '
request was filed on April 14, 1987, the Staff noted that "the Motion and Request seeks a form of Commission action contemplated by 10 C.F.R. 6 50.57(c). . . " - However, the request did not address either Section 50.57(a) er 50.57(c), or the interrelationship between those provisions and Section 50.47(c). Findings under the former provision are required 1
before Applicant's request can be granted. M. at 4-5. As the Board ;
1 observed in Question 1, above, except for an introductory reference to l
i Section 50.57(c) as the authority for its Motion, there is no further mention of that provision in its Motion.
In answer to Question 1 and 4, since Applicant's Motion includes "a motion . . . for an operating license authorizing . . . further operations l she > 9f futt power operation [,)" It can be treated as filed pursuant to Section 50.57(c). The Motion, however, does not address the reasons l
why, under that provision, the relief sought should be granted. The l
l proponent of an order has the burden of proof. 10 C.F.R. Section 2.732. In addition, under Section 2.730(b), a' motion "shall state with particularity the grounds and the relief sought, and shall be accompanied by any affidavits or other evidence relled on. . ." Accordingly,
-2/ NRC Staff Response to LILCO Motion for Expedited Commission Consideration of Request to Authorize Operation of Shoreham at 25%.
of Full Power, April 29,1987, at 1.
i hm_.___
l
- Applicant must demonstrate, with particularity, that it is entitled to a 25%
power license under the criteria of Section 50.57(c).
Section 50.57(c) also provides:
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 j 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 1 opposed, the presiding officer shall make findings on I the natters specified in paragraph (a) of this section i 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 Director of Nuclear Reactor Regulation will make findings f on all other ,
matters specified in paragraph (a) of section. if no l party opposes the motion, the presiding officer wili ;
issue an order pursuant to 52.730(e) of this chapter, i authorizing the Director of Nuclear Reactor Regulation 1 to make appropriate findings on the matters specified i in paragraph (a) . ..
l This language 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 contentions are so relevant; and (3) make findings on the application of the Section 50.57(a) criteria to the activity sought to be licensed with respect to those criteria placed into controversy by an opposing party. However,if the motion is unopposed, the determination whether the criteria in Section 50.57(a) are met rests with not with the presiding officer, but with the Director of Nuclear Reactor Regulation.
Thus, whether or not the motion is opposed, Applicant, as the proponent of an order, is required to demonstrate that it is entitled to -
the 25% power license it is seeking. In addition, given the fact that the Motion is opposed by Interveners in this case, Applicant bears the
I burden of demonstrating that, notwithstanding such opposition -- based on outstanding contentions and otherwise -- appropriate findings can be made under Section 50.57(a). See Suffolk County, the State of New York and the Town of Southampton Response in Opposition to LILCO Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25% Power Request, July 27, 1987; Suffolk County, the State of flew York and the Town of Southampton Statement Concerning LILCO's i
Motion to increase Power to 25%, July 27,1987.
A review of Applicant's April 14, 1987 Request shows that Applicant presented its position on the . significance of the remaining emergency planning issues to 25% power operation. Request, at 81-102. In that pleading, Applicant states that [o]nly a few issues remain to be resolved to allow issue of a full-power license." Id. at 84. In an accompanying footnote Applicant states its position that the issues in the O L-5 proceeding are "not a material consideration" for its Request, inasmuch as
" LI LCO's 10-mile planning basis gives such a large margin over the planning basis that would be adequate for the low risks at 25% . . ."
M.atn.56. Applicant also characterizes the LILCO Plan as having been
" fully litigated." Id. Applicant treats the legal authority issues as resolved by its motion for summary disposition on realism, and therefore not significant for 25% power ' operation. M. at 90-94. Similarly, Applic, ant argues that the reception center, EPZ size, hospital evacuation, and school buses and drivers issues are immaterial or insignificant to its Request based on reduced risk associated with 25% power operation. Id.
at 95-102.
The Board noted in its October 6,1987 Memorandum that Applicant's !
statements that it considered the unresolved offsite emergency planning matters to 'be minor deficiencies were contrary to the Board's prior findings that fatal flaws exist in the Plan barring issuance on the current I
record of a full power license. Memorandum at 6. Thus, even if Applicant were not otherwise required to further particularize its Request i i
pursuant to the Section 50.57(c) criteria, Appilcant would, as suggested i by the Board's Question 3, above, need to revise the bases for its Request in light of the a Board's rejection of Applicant's position that 1
only minor deficiencies stand in the way of issuance of a full power license.
Section 50.57(c) contemplates that a party with contentions in the proceeding will be afforded the opportunity to be heard "to the extent that his contentions are relevant to the activity sought to.be authorized."
Thus, whether or not Applicant addresses the relevance of the conten-tions to the 25% power request, interveners here must be given the opportunity to do so. Were Applicant not to address the relevance of the contentions, it risks default on that question. As suggested by the Board'.s Memorandum, the question of materiality or significance of the outstanding issues under Section 50.47(c) is not .necessarily the same as the question of relevance of the contentions under Section 50.57(c).
Thus, the Request's discussion of materiality and insignificance appears l I
to be insufficient, in the face of arguments that the contentions are j relevant, to avoid further iltigation of the applicability of the contentions to 25% power operation.
Applicant should be given an opportunity to address these matters. ]
Thus, Applicant should refile its Request, and address the criteria and other matters appropriate for consideration by the Board under Section )
50.57(c). -
4 I
B. The Relationship Between Sections 50.47(c) and 50.57(c) (Question 5) .
Having falted to address Section 50.57(c) requirements substantively, l I
Applicant has not provided the Board or parties with its views as to the 4 i
nature of the Section 50.57(a) findings sought, how the contentions at 1
issue relate to the findings required under Section 50.57(3), or how l Applicant would rely upon Section 50.47(c)(1) to support those findings.
Thus, Board Question 5, above, raises the question whether it is ,
l required to address and make finc.ings concerning Section 50.57(c) !
requirements prior to addressing Section 50.47(c)(1).
In order for the Board to make findings under Section 50.57(c), it must know more about the nature of the relief sought. The Board must be told, first, what is the standard sought to be applied pursuant to Sections 50.57(c) and (a) -- that is, is Applicant requesting the Board to find that the contentions are not relevant at 25%, or at full power, or both? Second, how is Applicant relying on Section 50.47(c)(1)? Is Applicant seeking a finding that each contention is not relevant (to either 25% power or full power operation) Independently of Section 50.47(c)(1),
or, is it seeking a finding on relevance pursuant to showing, under
~
3/ App!Icant's Motion for Low-Power Operating License, dated June 8, 1983, shows that Applicant is familiar with these procedures.
Secticn 50.47(c)(1), that deficiencies in planning are "not significant,"
there are " adequate interim compensating actions," or there are "other compelling reasons to permit plant operation." Third, is Applicant seeking to show that even if relevant, the Section 50.47(c)(1) considerations permit a 50.57(a)(3) finding of regulatory compilance?
As these questions suggest, Question 5 can only be answered fully if one makes certain assumptions about the relief sought. However, while
{
the relationship between Sections 50.47(c)(1) and 50.57(c) may vary with l the application, it would seem that, at least under certain circumstances, j findings on the criteria of Section 50.47(c)(1) may be made in connection 1
with an application under Section 50.57(c), and need not await prior !
l authorization of operation under the latter provision. l Thus, Section 50.57(a)(3) requires a finding that there is reasonable assurance that the activities authorized by the operating license can be conducted without endangering the health and safety of the i
public and that such activities will be conducted in compliance with the j regulations in this chapter. Compliance with the regulations relating to emergency planning, or course, requires that the reasonable assurance findings contained in Section 50.47(a) can be made. For operation at j l
power levels above 5%, these requirements e , fully applicable. See 10 l l
C.F.R. Section 50.47(d). As held in CLI-86-13, such compliance may be accomplished in the appropriate circumstances through resort to Section 50.47(c)(1), despite an applicant's failure to meet all the standards in c _ _ _ _ . _ _ _ -.. _ _ - . _ _ _ _ _ _ _ _ _ _ _ _ . _
i 1
1
- 1 Section 50.47(b). b 24 NRC at 29.
A fuller discussion of this question would be appropriate if and when a more concrete proposal for use of Section 50.47(c)(1) In connection j l
with Section 50.57(c) is presented.
C. Whether Operations at Less Than Full Power Can Constitute " Interim Compensating Actions" Under Section 50.47(c)(1) (Question 2) l As fully explicated by a previous Licensing Board sitting in this proceeding, Section 50.47(c)(1) was promulgated to address a problem .
l foreseen bv 'he Commission in placing requirements on appilcants and l
licensees to submit for review State and local government emergency response plans -- that is, the possibility that such governments would l
not create such plans or that they might not be adequate. See l l
l L B P-83-2 2, 17 NRC 608, 620-627 (1983), aff'd , CLI-83-13, 17 NRC 741, 747-3 (1983). This is the very situation which has arisen in this case, f in promulgating this provision, the Con, mission expressly stated what it intended by use of the terms " interim compensat!ng actions" and that such interpretation was consistent with the intent of Congress:
In deciding whether to permit reactor operation in the face of some deficiencies, the Commission will examine among other factors whether the deficiencies, (sic) are significant for the reactor in question, whether l
-4/ The Commission's recent amendment of Section 50.47(c)(1) to provide a more explicit framework for consideration of a utility-only emergency plan in a situation of state and/or local non-participation j in emergency planning does not affect the basic structure of, and !
the relationship between, the regulatory provisions. The j consideration of the expected state and/or local response and the !
utility's compensating measures to be demonstrated under Section l 50.47(c)(1) still must be shown to demonstrate that there is !
" reasonable assurance that adequate protective measures" can and !
will be taken. Final Psule, " Evaluation of the Adequacy of Off-Site Emergency Planning for Nuclear Power Plants at the Operating j License Revicw Stage where State and/or Local Governments Decline I to Participate in Off-Site Emergency Planning," adopted October 29, l 1987. I 3
1
adequate interim compensatory actions have been or will be taken promptly, or whether other compelling reasons exist for reactor operation, in determining the sufficiency o' " adequate interim compensatory actionr" under this rule, the Commission will examine State plans , local plans, and licensee plans to determine whether the features of one plan can compensate for deficiencies in another plan so that the level of protection for the public is adequate.
This interpretation is consistent with the provisions of the NRC Authorization Act fo7 scal ear 1980, Pub. L.96-295 (emphasis added.) 45 Fe . eg. at 55,4037 Col . 1.
LBP-83-22, supra, at 625. (Emphasis in original). The Commission does not appear to have considered whether " interim compensating measures" might include reduction in power levels.
Similarly, as noted by the Board, Memorandum at 4, the Commission referred to the above explanation of " interim compensating actions" in Consolidated Edison Company of New York (Indian Point, Unit No. 2),
Power Authority of the State of New York (Indian Point, Unit No. 3),
CLl-83-16, 17 NRC 1006, 1010 (1983). In Indian Point, the Commission 1
noted that under the Commission's regulations, " interim compensating actions" could be used, among other factors to be considered, to permit continued full power operation, in spite of the lack of an approved state or local plan. Id. at 1011. The Commission did not consider whether
" interim compensating actions" included operation at reduced power levels.
If Applicant is to rely upon " interim compensating actions" to justify compliance with Section 50.47(a), for purposes of its Section 50.57(c) application, it should demonstrate the existence of features of the LILCO Plan which compensate for the absence of State or local emergency plans
i i
. with respect to that application. 5,/ M. Consideration of the comparative risks of accidents at 25% power does not appear to be what the ;
i Commission had in mind when it determined to allow a showing of " interim {
compensating actions" in Section 50.47(c)(1). -
I D. If Intervenor Contentions are Found Relevant to the 25% Power Authorization, Can the Contentions be Resolved Short of Hearing Them in the Full Power Proceeding? Will Separate Consideration for- -
the Purpose of a 25% License Lead to Expedition? (Questions 7 and 8) i Were the Board to determine that one or more of the unresolved I 1
contentions is relevant to the activity sought to be authorized, the Board )
1 would be required to make findings of fact and conclusions of law as to !
whether the necessary findings could be made under Section 50.57(a).
This would require a reasonable acsurance finding in the form of an initial decision on the relevant contentions. As discussed above, Section
)
50.57(a)(3) requires a finding of regulatory compilance, which in turn would require a finding of reasonable assurance under Section 50.47(a).
l
-S/ lt may also be noteel that the use of the phrase " interim compensating actions have been or will be taken promptly" in Section 50.47(c)(1) itself strongly suggests that the Commission had in mind actions which might not be able to be accomplished immediately.
Reduction in power level, or restricting ascent to a higher power level, by the nature of those actions, may be accomplished without !
considering the " promptness" of the actions to be taken. j
-6/ The Commission's recent amendment of Section 50.47(c)(1) to more
' xplicitly address the showing necessary to support licensing action e
based on a utility-only plan in the face of no local government cooperation in planning does not indicate a different Interpretation of
" interim compensating actions." if anything, the amendment's focus exclusively upon "best-effort" government response in combination with a utility's compensating measures suggests that " interim compensating actions" refer to planning measures, and not changes in power levels.
l
- 1 Further, that showing of compliance with Section 50.47(a) could be based upon the showing required by Section 50.47(c)(1).
In this proceeding, Applicant has not attempted to show that the
]
pending contentions are not relevant under Section 50.57(c), although it I has argued, as noted above, that they are not significant or material.
Question 7 appears to ask whether, once it were determined that contentions are relevant to coeration at 25% power, those contentions could be resolved without resolving the contentions for full ' power operation. Put another way, would resolution of the contention for 25%
power operation be different from resolution for full power operation?
There may be circumstances in which the showing necessary to .-
l support a determination of reasonable assurance or regulatory compliance at 25% power may be different from the showing required fo'r full power operation. However, several of the pending emergency planning issues, particubrly the legal authority issues relating to activation of the alert ,
i and notification system and the decision and recommendation process for protective actions for the public, would seem to require 'a finding of regulatory compilance at 25% power as well as at full power. 7I The- -
Board would have to find that these legal authority issues are not 1 1
l .
7/ This would appear to be true, even using the " realism" . assumption, that the _ governments would respond in the event of an accident I using their "best efforts." For example, in ' CLI-86-13, 'and in the
'recent rulemaking amending Section 50'.47(c)(1),' no assumptions were made concerning the time it would take to activate the siren! system, or the adequacy of the government response. 24 NRC at 31. - This is left - for determination in the- particular case. Sec-tion 50.47(c)(1)(lii)." While the impact of possible delay may be different at 25% than at full power,. the facts needed to determine whether there would be delay, and, if so; how much, appear to be the same.
I
l l
. j
[
l relevant to operation at 25% power to avoid resolving these issues for all j purposes.
As a result, there is little benefit to Applicant in terms of expedition I
in undertaking a separate 25% power proceeding. To the extent certain 1 pending contentions involve the same qt stions at 25% power as well as at full power, such a separate proceeding would likely only lead to further .
I delay, rather than expedition. l E. Whether Probabilistic Risk Analysis Can Be Utilized to Overcome Deficiencies in Emergency Planning (Question 9)
The Board queried the parties as to whether a probabilistic risk
)
assessment showing that the risk to the public of an accident at Shoreham while operating at 25% power was so low as to render the pending I
contentions insignificant could form the basis for granting a 25% power '
license in the face of emergency planning deficiencies or for bypassing otherwise applicable emergency planning regulations. The Board cited Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), A LA B-819, 22 NRC 681, 713 (1985), Southern California Edison Company, et al. (San Orofre Nuclear Generating Station, Units 2 and 3),
C L1 10, 17 NRC 528, 533, rev'd in part on other grounds, GUARD v.
N P,C , 754 F. 2d 1144 (1985), and the Commission's Statement of Consideration for the Final Emergency Planning Rule (45 Fed. Reg. 55403), as bases for questioning whether possible deficiencies in emergency planning can be disregarded because of the low probability that protective measures would actually have to be implemented.
As set out by the Board in its Memorandum, at 8, the Commission noted that the " underlying assumption of the NRC's emergency planning
regulations, .. . is that ... 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 ,
I perhaps both . . ." (quoting San Onofre, supra,17 NRC at 533.) If, as the Appeal Board stated in Limerick, supra, the regulations presutne that evacuation of the EPZ might well be necessary, it appears inconsistent wlth the regulations to argue that deficiencies in planning otherwise required are insignificant because the risk is so low.
The only possible basis for such an argument would be that the regulations themselves provide an applicant with the opportunity to make such a showing. Prior to the amendment to the regulations in 1982 to allow issuance of a low power license in the absence of approved offsite emergency plans (47 Fed. Reg. 30232 (July 13, 1982)), the Licensing Board in Southern California Edison Company, et al. (San Onofre Nuclear Generating Station, Units 2 and 3), 15 NRC 61, 185-195 .(1982),
interpreted 10 C.F.R. Section 50.47(c)(1), stating that the language "not significant for the plant in question .. . or that there are other compelling reasons to permit plant operations" encompassed "the low-power situation, authorizing exemptions from at least some of the full-power planning requirements upon an appropriate showing. . ." _Id. at 193. In the San Onofre case, the Board applied Section 50.47(c)(1), finding that
"' deficiencies in the off-site plans are not significant for the plant -in question. . .['] 10 CFR. 50.47(c)(1)" I d_. at 197. Thus the Licensing-Board there applied the "not significant for the plant in question" criterion in judging whether low power operation may be allowed, rather than the " interim compensating actions" criterion, discussed above. A
- ... l l
l L similar approach was followed in Pacific Gas and Electric Company (Diablo l
Canyon Nuclear Plant, Units 1 and 2), LB P-81 -21, 14 NRC 107,119-139 l (1981). In each of these cases, probabilistic risk analysis was employed to reach a conclusion that the probability and consequences of an accident requiring offsite response was significantly . lower for low power testing-than for full power operation. j in July 1982, the Commission amended the regulations to permit issuance of operating licenses limited to 5% power without approved offsite emergency plans, using the bases (also employed in the two above-cited . j I
cases) that fission product inventory during low power testing is low, the i l
capacity of plant systems to mitigate accident consequences at low power ;
is much greater than at full power, and the time available is sufficient to l take actions to prevent releases offsite, or to allow precautionary actions 1
in the event of release offsite. 47 Fed. Reg. 30232 (July 13, 1982).
4 There is nothing in the 1982 amendments which precludes an applicant from attempting to show that deficiencies in emergency planning "are not significant for the plant in question." The 1980 Final Rule presumes that a serious accident could happen and that there will be offsite consequences requiring planning for the EPZ. The 1982 amend-ments require compliance with all offsite emergency planning requirements above 5% power. In adopting the 1982 amendments, the Commission stated:
On balance, the Commission has concluded that 'the rule changes are technically. Justifiable and will enhance the efficiency of the licensing process, without adversely affecting the public health and safety and therefore should .be promulgated.
I l
47 Fed. Reg. 30232. Thus, the' safety rationale was provided in the context of allowing low power testing, to make the full power licensing i
process more efficient. While the case law preceding the rule suggests that use of probabilistic risk analysis is permitted to attempt to secure
" exemption" from certain requirements under Section 50.47(c)(1)
(" Insignificant for the plant in question" standard), the rulemaking in effect codifying the case law suggests that the rationale for allowing such ,
analysis may not be app!! cable to power operations of an indefinite l
nature, but rather only to low power testing of relatively short duration.
See _id_.
In sum, the question whether probabillstic risk analysis may be used to show that failure to meet all the 16 emergency planning standards is "not significant for the plant in question" has not been directly addressed by the Commission to date. As noted, it has. been used to justify noncompliance with planning standards for 5% power testing. Adoption of 1
Section 50.47(d) had the effect of resolving generically the insignificance i of lack of approved offsite plans for operations limited to 5% power testing. However, there may be substantial distinctions ' between low power testing and sustained power operations at 25%. Substantial evidence would have to be introduced in order to demonstrate that emergency planning deficiencies were not significant for the level of operation for which a license is sought.
F. Whether the 25% Power Request is Sufficiently Discrete to Warrant Appointment of Another Licensing Board (Question 10)
As indicated above, an important threshold question to be addressed by this Board is whether the emergency planning contentions now
__________..__-_--___--_--_-N_-._-._____
- 19 _
pending, particularly those dealing with legal authority, are relevant to the 25% power request. If, as has been argued above, at least some of thore Obntentions are relevant, then Section 50.57(c) requires that an initial decision be issued making findings concerning those contentions as relevant to the activity sought to be authorized, under- the standards in Section 50.57(a).
As suggested by the Board's inquiry (Question 10, above), issues remain concerning whether the LlLCO Plan can be implemented, as well as i
the nature of a "best-effort" government response in the areas where . i Lil.CO has been found to lack legal authority to implement the Plan.
While the precise implementation of the Plan in the event of an accident at 25% power may be different than at full power, questions relating to implementation of the Plan, either by LILCO or the State and County, apply to both 25% power and full power operation. The consequences of training problems, or of delays due to government participation without coordinated preplanning may be different at lower power levels, but the issues would still have to be addressed in terms of the activity sought to j be licensed.
In these circumstances, proceedings addressing these issues with respect to the two licenses sought will likely lead to duplication of effort, whether heard by the same board or a different board. Appointment . of another board would, in addition, have the disadvantage. of requiring -
familiarization of another ' board with the legal. authority issues, ,and perhaps other issues as well.
As noted by the Board, the argument that the issues at 25% 'are discrete from those otherwise pending is premised on the asstanption that
f s I those pending matters concern minor deficiencies in the LILCO Plan. If it were determined that the contentions pending were indeed not relevant at 25% power, then Applicant's accident risk analysis might be sufficiently discrete to warrant appointment of another board to address the accident I analysis issues. However, given the relevance of at least some of the j 1
pending contentions to 25% power, any other board would have to address j compliance with emergency nianning regulations. As a result, going forward with both the 25% power and full power applications before different boards will lead to addressing the same issues in two forums.
Ill. CONCLUSION The Licensing Board should direct that any proceeding on the 25%
power application go forward before it in accordance with the procedures I
outilned above.
Resp tfully submitted,
>e ge E. Johns n c h j
, Counsel r NR taff Dated at Bethesda, Maryland this 6th day of November,1987
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i 00LXETED i USNRC 1 UNITED STATES OF AMERICA ag7 g 9 p g 39 NUCLEAR REGULATORY COMMISSION i
.' )
GF 3ECat3Any j
BEFORE THE ATOMIC SAFETY AND LICENSINCL Ci d j
in the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322- O L-03
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
i CERTIFICATE OF SERVICE I
I hereby certify that copies of "NRC STAFF RESPONSE TO BOARD' l MEMORANDUM REQUESTING PARTIES' VIEWS ON QUESTIONS RAISED i BY LILCO 25% POWER AUTHORIZATION. . MOTION in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an ' asterisk , through ;
deposit in the Nuclear Regulatory Commission's internal mall system j or, as indicated by double asterisks, by express mall this' 6th day of l November 1987. j Morton B. Margulies, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board
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~ Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue ;
Washington, DC 20555 Albany, NY 12210 1
Jerry R. Kline* Fabian G. Palomino, Esq.**
Administrative Judge Specla! Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon* Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service .
U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley Ill, Esq.
Federal Emergency Management Donald P. Irwin, Esq.**
Agency Hunton s Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York ' 11771
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. l Stephen B. Latham, Esq. Herbert H. Brown, Esq. l Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.**
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick 6 Lockhart .
Riverhead, NY 11901 South Lobby - 9th Floor l 1800 M Street, NW 1 Atomic Safety and Licensing ' Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 )
Appeal Board Panel
- Empire State Plaza i U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 )
Spence W. Perry, Esq. 1 Martin Bradley Ashare, Esq. General Counsel l Suffolk County Attorney Federal Emergency Management l H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW ;
Hauppauge, NY 11788 Washington, DC 20472
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Dr. Monroe Schneider Robert Abrams, Esq.
North Shore Committee Attorney General of the State i P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, 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 !
Long Island Lighting Company Federal Emergency Management l 175 East Old Country Road Agency l Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman i 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 Yo'rk 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
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l Qi V/ '
A3eorge ff. Johr,isyn
/ Counser for NRC Staff
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