ML20236L852
| ML20236L852 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/06/1987 |
| From: | Zeugin L LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4793 OL-6, NUDOCS 8711110087 | |
| Download: ML20236L852 (18) | |
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LIL,CO, November 6, l'907 * '
4 e g 00CKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION . .. j i
- 5. 00v -9 P 3 '48 l
Before the Atomic Safety and Licensing Board {, I , %
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-6 l
) (25% Power) '
(Shoreham Nuclear Power Station, )
Unit 1) )
l l l l LILCO's Brief on 25% Power Questions On October 6,1987, the Board requested the parties to address a number of ques-tions about LILCO's request to operate Shoreham at 25% power. Memorandum to the Parties, October 6,1987 (hereinaf ter " Memorandum"). The Boad's questions can be I
grouped into three basic categories: (1) whether LILCO's motion to increase power to 25% includes all elements necessary for granting that request under 10 CFR S 50.57(c);
(2) whether LILCO's prior motion under S 50.47(c)(1), which was attached to LILCO's present motion under S 50.57(c)(1), contains the ppma facia evidence necessa.*y for resolving S 50.47(c)(1) in LILCO's favor; and (3) whether, assuming that LILCO's motion ,
l is complete under S 50.57(c) and contains the appropriate factual assertions, suffi-ciently discrete issues exist for the appointment of a separate Licensing Board. Each l of these areas is addressed below. Briefly, LILCO believes that its motion is complete i 1
under S 50.57(c), that ample grounds exist under SS 50.47(c)(1) and 50.57(c) for granting that motion, and that a separate Licendng Board can productively considst most,if not all, of the components of LILCO's motion.1 1/ Even if the Board concludes that certain emergency planning issues need to be resolved before the 25% power motion can be fully decided, various steps can be taken (footnote continued) 8711110007 871106 PDR ADOCK 05000322 Q PDR OSDJ
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I. The Adequacy of LILCO's Motion Under S 50.57(c)
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The Board has raised a series of questions about the sufficiency of LILCO's mo- i tion under 10 CFR S 50.57(c). Specifically, the Board has asked:
l (W]hether LILCO has complied with the Commission's deci- ;
sion b CLI-87-04 allowing it to refile its request for a 25%
powe,r license under 10 CFR 50.57(c), when LILCO merely 1 refiled a motion wholly directed to the regulatory require- '
ments of 10 CFR 50.47(c), merely stating that it was being ;
submitted pursuant to 10 CFR 50.57(c). '
Memorandum at 3. Later, the Board poses the related questions:
i (W]hether Applicant's request for a 25% power authorization l addresses the requirements of 10 CFR 50.57(c) and the extent, 1 if any, to which it is deficient, and whether the Applicant has )
in fact filed its request pursuant to 50.57(c), as called for by the Commission.
(W]hether or not satisfying the requirements of 50.57(c) and obtaining approval for operations short of full power is a pre-requisite before it can be demonstrated to the satisfaction of the Commission, under 50.47(c) that deficiencies in the plan I are not significant for the plant in question.
- ** I Is the Applicant with its Request bypassing an essential step in not proceeding initially to satisfy 50.57(c)?
i Memorandum at 7. )
1 Response to these questions requires a review of the relationship between SS 50.47(c)(1) and 50.57(c), specifically in light of the factual circumstances of the i
(footnote continued) to expedite that ultimate decision. One useful step would be to instruct the Staff to complete its technical review of LILCO's risk assessments and other technical submis-sions filed with the 25% power motion.
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i Shoreham licensing proceeding. As the Board notes in its Memorandum, see Memoran-dum at 3, SS 50.47(c)(1) and 50.57(c) were, in the abstract, designed to apply in ' differ-ent circumstances. However, when they are applied to the facts of LILCO's application. ;
to operate Shoreham et 25% power, the two provisions become functionally synonymous and present identical standards for satisfying them. Accordingly, LILCO's application is complete, whether assessed under S 50.47(c)(1) or 50.57(c).
Section 50.47(c)(1) authorizes operation beyond 5% power, notwithstanding the existence of unresolved cmergency planning issues, where the applicant demonstrates any one of the following:
(a) that deficiencies in the [ emergency) plans are not sig-nificant for the plant in question, (b) that adcquate interim compensating actions have been or will be taken promptly, or l (c). that there are other compelling reasons to permit plant operation. J 10 CFR S 50.47(c)(1). This provision of the Commission's regulations was promulgated l
l following passage of the NRC Authorization Act of 1980, in which the Congress adopted a two tiered approach for the NRC's acceptance of emergency plans.. Pub. L.
No.96-295, 94 Stat. 780, 784, S 109(b)(1)(B)(1) (1980). In the Authorization Act, Con- l l
gress authorized the Commission to issue operating licenses for nuclear power plants if it determined that:
(I) there exists a State or local radiological emergency re-sponse plan which provides for responding to any radiological :
l emergency at the facility concerned and which complies with I the Commission's standards for such plans under subparagraph (A),or (II) in the absence of a plan which satisfies the require-ments of subclause (I), there exists a State, local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the~ facility concerned.
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Ld. Section 50.47(c)(1) was codified to effectuate the second part of Congress' di- :
rective. See " Evaluation of the Adequacy of Off-Site Emergency Planning for Nuclear Power Plants at the Operating License Review Stage Where State and/or Local Govern-ments Decline to Participate in Off-Site Emergency Planning," Final Rule, 52 Fed.
Reg. 42,078, 42,079-80 (November 3,1987). This provision incorporates a slightly dif-ferent test - reasonable assurance of avoidance of endangerment to the public health i
and safety - than that underlying 5 50.47(b). While both tests are consistent with the Atomic Energy Act's requirements, the Commission envisioned the " endangerment" test as being somewhat more flexible than that applying where state and ocal plans exist.
By contrast, S 50.57(c) is essentially a procedural provision which permits the l presiding officer to authorize " operations short of full power operation" while full-power hearings are still ongoing. To authorize operations under S 50.57(c), the presid-ing officer must make findings about the six items specified in S 50.57(a) as to which there is a controversy. These findings are:
(1) Construction of the facility has been substantially completed, in conformity with the construction permit and the application as amended, the provisions of the Act, and the rules and regulations of the Commission; and (2) The facility will operate in conformity with the appil-cation as amended, the provisions of the Act, and the rules and regulations of the Commission; and (3) There is reasonable assurance (1) that the activities au-thorized by the operating license can be conducted without endangering the health and safety of the public, and (11) that such activities will be conducted in compliance with the regu-lations in this chapter; and (4) The applicant is technically and financially qualified to l engage in the activities authorized by the operating license in accordance with the regulations in this chapter. However, no finding of financial qualification is necessary for an electric utility applicant for an operating license for a utilization fa-cility of the type described in S 50.21(b) or S 50.22.
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(5) The applicable provisions of Part 140 of this chapter have been satisfied; and l l
(6) The issuance of the license will not be inimical to the l common defense and security or to the health and safety of '
the public. j l
10 CFR S 50.57(a).
At this stage in the Shoreham proceeding, only issues related to the Shoreham f emergency plan remain unresolved. Issues involving plant construction and operation, j LILCO's technical and financial qualifications to operate Shoreham, and the provision 1
of financial protection and indemnification for a Shoreham accident, and have all been l resolved in LILCO's favor and long ago became final agency action. ! ndeed, I the Shoreham Facility Operating Licenu, License No. NPF-36, begins by reciting that ;
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"[t]he Nuclear Regulatory Commission has found" and then lists nine findings, which )
include findings on all six subparts of S 50.57(a). With the exceptior, of subpart (a)(3),W these findings contain no qualifications and are thus valid for all power levels, up to )
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2/ The adequacy of the construction of the Shoreham plant and LILCO's ability to I operate it in conformity with Commissien regulations were resolved by the Licensing Board in the OL-2 Docket in 1983. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57,18 NRC 445 (1983). LILCO's technical and financial qualifications to operate Shoreham are assessed annually by the NRC Staff in light of filings that LILCO is required to make pursuant to the Shoreham license. In addition, in 1984 the Board in the OL-2 Docket denied admission to a financial qualification conten-tion offered by Suffolk County and the State of New York, Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426 (1984). LILCO is also required by a license condition to certify annually that it has obtained the requisite coverages under 10 CFR Part 140.
3/ Because the finding that equates to S 50.57(a)(3) finds reasonable assurance with regard to " activities authorized by this operating license" and because the operating 11-cense specifies a maximum power level of 121.8 megawatts thermal (5% power), this finding is limited to 5% operation. This limited finding resulted from the fact that at the time the license was issued, emergency planning issues remained unresolved. Thus, the only issues relating to the reasonable assurance finding in S 50.57(a)(3) that could be in controversy in this proceeding are those related to emergency planning issues.
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100%. Thus, LILCO has already demonstrated compliance with subparts (1), (2), (4), (5) and (6) of S 50.57(a) and they are not open issues in this proceeding.
The inquiry under S 50.57 thus rec 'es to whether the requirements of S 50.57(a)(3) have been met; and more specifically, whether LILCO has made sufficient demonstrations with regard to S 50.47 to establish that there is reasonable assurance that 25% operation "can be conducted without endangering the health and safety of the public" and that such operation "will be conducted in compliance with the regulations."
LILCO's motion properly focuses on these issues. The motion asserts a series of facts which, if accepted by the Board, constitute a sufficient basis for finding that LILCO has compiled with S 50.47(c)(1) and in turn, permits a reasonable assurance finding under S 50.47(a). Accordingly, the second test of reasonable assurance found in S 50.57(a)(3) has been demonstrated since 25% operation would be conducted in accord with NRC regulations, most pertinently S 50.47. With regard to the S 50.57(a)(3) reasonable assur-ance finding relating to the endangerment of public health and safety, as was discussed above, S 50.47(c)(1) was promulgated by the NRC to implement S 109(b)(1)(B)(1)(II) of the NRC Authorization Act of 1980 which contained an endangerment test identical to the one found in 10 CFR S 50.57(a)(3). Thus, by demonstrating compliance with 5 50.47(c)(1), LILCO has also demonstrated its complete compliance with 5 50.57.
Therefore, LILCO has complied with the Commission's decision in CLI-87-04 and its pleading is not deficient under S 50.57(c). Furthermore, it follows from the discus-sion above that there is no legal basis for concluding that it is a prerequisite to estab-lish that the requirements of S 50.57(c) have been met before a satisfactory demonstra-tion under S 50.47(c)(1) can be made.M In fact, the S 50.47(c)(1) demonstration is the 4/ Indeed, the language in S 50.47(c)(1) that interim compensating actions "have been or will be taken" indicates that a ruling on that provision can be predictive in na-(footnote continued)
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determinative part of LILCO's S 50.57(c) motion. I II. The Adequacy of LILCO's Motion Under S 50.47(c)(1) 1 The Board has also posed a series of questions about LILCO's motion as it relates j i
to 10 CFR S 50.47(c)(1). The Board begins by discussing its interpretation of S 50.47(c)(1), focusing only on the part of that subsection allowing for the demonstra- l tion of adequate interim compensating measures. See Memorandum at 3-4. The Board recites a Commission decision in the Indian Point proceeding, Consolidated Edison Co. !
of New York (Indian Point, Unit No. 2), CLI-83-16,17 NRC 1006 (1983), and then asks: 1 A question arises as to whether if an applicant were issued a !
license under 10 C.F.R. 50.47(c) to conduct operations at less i j than full power, the less than full power operations could be l l considered as part of an adequate interim compensating ac- '
tion in view of what the Commission stated interim compen-sating actions are.
Memorandum at 4. In responding to this question, it is first necessary to note that the y Commission did not purport to generically define what was an " interim compensating !
action" in CLI-83-13. Rather, in the context of that case, the Commission said that it would look at the State, local and/or utility plans to see if the features of one plan com-l pensated for deficiencies in another "so tnat that level of protection for the public I j
health and safety is adequate." I_d. at 1010. Thus, the key to the Commission's formula- l l
tion was its concern that public health and safety be adequately protected, by whatever
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means.N In the case of Shoreham, the State of New York and Suffolk County have i
(footnote continued) ture, which, in turn, suggests that compliance with S 50.57(c) is not a prerequisite for l that finding on S 50.47(c)(1).
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5/ To the extent the Board reads CLI-83-16 to say that in the case of Shoreham the l
only acceptable " interim compensating actions" would be a pre-existing state or local l I
(footnote continued) !
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refused to cooperate in emergency planning. In their place,' LILCO has submitted a !
utility plan which it believes will provide adequate protection of public health and safe- a ty. In the immediate 25% power motion, LILCO does not contend that operation at 25%
power is a complete substitute for a State, local or utility emergency plan. Rather, a LILCO argues that operation at 25% power coupled with the emergency plan submitted and staffed by LILCO, will provide adequate protection of public health and safety. l I
Thus, operations at less than full power can constitute part of an interim compensating '
action.El l
I (footnote continued) plan in addition to the emergency plan already offered by LILCO, that reading is incon-sistent last week,withitrecent stated:Commission statements. When the Commission revised S 50.47(c)(1)
Congress did address, in 1980, the issue.of what should be done in the event there is no acceptable state or local emergency plan: it directed the NRC to evaluate a state, local, or utility plan to determine whether it provid-ed " reasonable assurance that public health and safety is not endangered by operation of the facility concerned."
Perhaps because it was overly optimistic that there would be an acceptable state or local plan in every case, the Commission did not, except in general terms (at 10 CFR Section 50.47(c)), provide in its regulations for the evalua-tion of a utility plan. The present rule is an effort to make up for the omission by incorporating provisions imple-menting the Congress's 1980 policy decision into the NRC's rules.
52 Fed. Reg. 42,083 col.1. Thus, the Commission contemplated that a utility plan could, by itself, constitute an " interim compensating action."
f/ LILCO also notes that the Board's question focuse3 on only one of the three al-ternative tests contained in S 50.47(c)(1). LILCO's 25% power motion is premised on showings that all three conditions of 5 50.47(c)(1) are met. Thus, even if the Board con-cludes that 25% operation is not an " interim compensating measure" as that phrase is used in S 50.47(c)(1), two other independent grounds still exist for finding that S 50.47(c)(1) has been met, l
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, l refused to cooperate in emergency planning. In their place, LILCO has submitted a l l
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utility plan which it believes will provide adequate protection of public health and safe -
ty. In the immediate 25% power motion, LILCO does not contend that operation at 25% i power is a complete substitute for a State, local or utility emergency plan.' Rather, LILCO argues that operation at 25% power coupled with the emergency plan submitted j and staffed by LILCO, will provide adequate protection of public health and safety.
Thus, operations at less than full power can constitute part of an interim compensating action.E/
1 (footnote continued) plan in addition to the emergency plan already offered by LILCO, that reading !s incon-sistent with recent Commission statements. When the Commission revised S 50.47(c)(1) last week, it stated:
Congress did address, in 1980, the issue of what should be done in the event there is no acceptable state or local emergency plan: it directed the NRC to evaluate a state, local, or utility plan to determine whether it provid-ed " reasonable assurance that public health and safety is not endangered by operation of: the facility concerned."
Perhaps because it was overly optimistic that there would i
l be an acceptable state or local plan in every case, the -
Commission did not, except in general terms (at 10 CFR Section 50.47(c)), provide in its regulations for the evalua-tion of a utility plan. The present rule is an effort to make up for the omission by incorporating provisions imple-menting the Congress's 1980 policy decision into the NRC's rules.
52 Fed. Reg. 42,083 col.1, Thus, the Commission contemplated that a utility plan l could, by itself, constitute an " interim compensating action."
- g/ LILCO also notes that the Board's question focuses on only one of the three al-ternative tests contained in 5 50.47(c)(1). LILCO's 25% power motion is premised on showings that all three conditions of S 50.47(c)(1) are met. Thus, even if the Board con-cludes that 25% operation is not an " interim compensating measure" as that phrase is used in S 50.47(c)(1), two other. Independent grounds still exist for finding that S 50.47(c)(1) has been met.
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l Next, the Board states that, contrary to LILCO's position in its motion, it doe.;
i not consider the deficiencies in the LILCO emergency plan to be minor and that it has made no reasonable assurance finding under S 50.47(a)in LILCO's favor. Memorandum at 6. The Board also indicates that in rejecting LILCO's motion for summary disposition on the realism issue it expressly rejected LILCO's claim that the record demonstrates that the LILCO Plan complies with NRC requirements. Id. The Board then asks the l parties to discuss the effect of this decision on the 25% motion.
The Board appears to have misperceived LILCO's 25% power motion. That mo-tion does recognize that open issues remain with regard to whether LILCO has demon-strated that the LILCO Plan meets the requirements of S 50.47. Motion for Designation I
of Licensing Board at 7-8 (July 14,1987). The motion correctly addresses how those l deficiencies are relevant to operation at 25% power, not the broader, but not directly relevant question of how these deficiencies affect LILCO's full-power application. See April 14,1987 Motion (appended to July 14 Motion) at 81-102. Thus, the underlying premise of a number of the Board's questions - that the pendency of emergency plan-ning issues prevents the Boarei from authorizing any operation above 5% power - is not l l
correct. Instead, what is needed is to resolve the question of whether the particular j open emergency planning issues are significant at 25% operation. LILCO's motion ad-dresses that issue in detail.
LILCO does not believe that the Board's ruling on LILCO's motion for summary I
disposition on the legal authority contentions changes, in any way, the adequacy of LILCO's filing. In the 25% motion, LILCO accepts that it does not possess independent legal authority to perform certain functions. See April 14, 1987 Motion at 89-94.
There, LILCO demonstrates that under the realism principle the lack of independent legal authority will not have a significant ef fect on public health and safety since it can 1
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be presumed that New York State and Suffolk County will use their best efforts in the ;
i case of an actual emergency at Shoreham and that they will use the LILCO Plan as the l
j only available compendium of emergency planning information and options for their re- i l
Sponse.
]
In its ruling on LILCO's motion for summary disposition, the Board accepted that i
New York State and Suffolk County would use their best efforts in an actual emergency. l
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Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, slip op. j i
at 22-23. However, the Board declined to assume, for purposes of granting summary j i disposition, that New York State and Suffolk County would follow the LILCO Plan, and thus lef t the issue for turther hearings. Id. Subsequent to the Board's decision, the l
Commission amended S 50.47(c)(1) to, among other things, incorporate expressly its re- l 0
alism decision in CLI-86-13. As part of that change, the Commission provided that a l Licens'ng Board may presume:
that in the event of an actual radiological emergency state and local officials would generally follow the utility plan. ,
However, this presumption may be rebutted by, for example, l a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in j fact be relied upon in a radiological emergency. i 10 CFR S 50.47(c)(1)(ill),52 Fed. Reg. 42,086.II Accordingly, LILCO believes that even 7/ The Commission explained this change in the preface to the rulemaking as foi- 6 lows:
The Long Island Lighting Co. decision included the observa-tion that in an accident, the "best effort" of state and coun- !
ty officials would include utilizing the utility's plan as "the best source for emergency planning information and op-tions." 24 NRC 22, 31. This rule leaves it to the Licensing Board to judge what form the "best efforts" of state and local officials would take. However, the rulemaking record strongly supports the proposition that state and local gov-(footnote continued)
4 If one assumes that the Board's ruling on LILCO's summary disposition motion decided, on the merits, that New York State and Suffolk County would not follow the LILCO Plan in an actual emergency,E the subsequent Commission rule mooted that determina-i tion. The end result is that LJLCO believes its 25% motion was valid on that point when it was filed, and that it remains valid today.
The Board also notes that issues relating to the exercise of the Shoreham emer . .
gency plan are still before the OL-5 licensfog board. Memorandum at 6. While the Board does not ask a specific question about that proceeding, it seems implicitly to sug-gest that LILCO's failure to discuss the proceeding in its 25% motion makes the plead-ing deficient. See i_d. Again, given the lower risks at 25% operation LILCO does not be-lieve that any " fundamental flaws" the OL-5 Board may find with regard to LERO's performance during the February 13, 1986 exercise will preclude the granting of the 25% motion. In any event, that Board's decision has not been rendered and cannot be prejudged. Accordingly, LILCO does not believe that the pendency of that proceeding limits present resolution of the 25% motion. Should the OL-5 Board later decide that l (f ootnote continued) j ernments believe that a planned response is preferable to an ad hoc one. Therefore it is only reasonable to suppose that in the event of a radiological emergency, state and local of-ficials, in the absence of a state or local radiological emer-gency plan approved by state and local governments, will ei-ther look to the utility and its plan for guidance or will follow some other plan that exists.
52 Fed. Reg. 42,082 col. 2.
!/ As just noted, LILCO believes that the Board's summary disposition ruling on this issue was not a merits decislan, but rather a determination that genuine issues of mate-rial fact existed which req'. dred further hearing before a decision on the issuance of a
, full power license could be made.
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the exercise revealed fundamental flaws in the LILCO Plan or in LERO's imple-na tation of that Plan, then their significance could be addressed in the 25% proceed-ing, should it be ongoing, or by the Staff as part of its continuing oversight role.
I Finally, the Board recognizes that LILCO's motion for a 25% operating license is predicated primarily on a probabilistic risk assessment (PRA) and asks whether such an approach:
is acceptable to the Commission as a method to overcome l emergency planning deficiencies or to bypass the regulations on offsite emergency planning.
Memorandum at 8. LILCO believes that consideration of PRA evidence regarding the basis for determining the need for, and adequacy of, offsite emergency preparedness is clearly consistent with established Commission policy.
LILCO's 25% motion - and its offer of PRA evidence - are premised on the fact I that the Commission's emergency planning regu'lations do not require the elimination of !
all risk. Instead, S 50.57(a)(3) requires a finding of reasonable assurance that the activi-ties authorized by the operating license can be conducted without endangering the pub-lic health and safety. S_ee e Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power l
Plant, Units 1 and 2), ALAB-756,18 NRC 1340,1345 (1983), aff'd sub nom. San Luis !
Obispo Mothers for Peace v. NRC, 751 F.2d 1287,1319-21 (D.C. Cir.1984), partial reh'g granted pn other grppnds,760 F.2d 1320 (1985). Similarly, S 50.47(a)(1) requires a find-ing that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. Thus, LILCO's use of a PRA study to show that the residual risk at 25% operation given the current state of emergency plan-ning is no greater than the residual risk that would be permitted at full power operation with a fully-approved emergency plan is consistent with the Commission's emergency planning regulations.
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e Indeed, the Commission has expressly approved of the use of probabilistic risk -
assessment and other quantitative methods of analysis.for determining an acceptable level of risk in nuclear power operation. In its recent Policy Statement on Safety Goals for the Operation of Nuclear Power Plants,51 Fed. Reg. 28,044 (1986), the Commission stated:
if pursuant to these guidelines, [ quantitative information]-is developed that is applicable to a particular licensing decision, it may be considered as one factor in the licensing decision.
1 I_d. at 28,047 col. 2. See also Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-86-29, 24 NRC 295 (1986) (Licensing Board, following the above quoted language, considered Applicant and Staff PRAs in determining that the failure . !
of three plant structures to meet deterministic licensing requirements was de minimis and did not require redesign of the structures). Thus, the Commission has recognized the legitimate role of quantitative PRA analysis in the regulation of nuclear power plant operations. Id. at 28,046 col. 3.
In its Memorandum, the Board has characterized LILCO's offer of PRA evidence as an effort to " overcome" or " bypass" offsite emergency planning regulations. Memo-randum at 8. This is not an accurate characterization. The Board appears to assume that LILCO offers its PRA evidence as a total substitute for emergency planning be-cause of the " low probability" that action pursuant to the plan would ever be necessary.
See id. However, LILCO offers its PRA evidence not to bypass any planning deficiencies but rather to demonstrate that at 25% power a much smaller zone is at risk and reduced emergency response actions will suffice to provide the same assurance of public health and safety.
Probabilistic risk assessment data played an important role in establishing the 10-mile EPZ. See NUREG-0396, App. I. LILCO submits that at 25% power, the risks ; <
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4 from plant operations are considerably smaller than at 100% power. . It is thus com- 4
.q pletely appropriate that PRA' evidence should be considered to determine whether the '
remaining risks from plant operation at 25% power coupled with available emergency planning resources provide the requisite assurance of public health and safety.
III. Appointment of a New Licensing Board Finally, the Board asks three questions about LILCO's request that the Board rec-ommend the appointment of a new licensing board to consider the 25% motion. Specif-ically, the Board asks the parties to revisit that issue taking into account:
(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 au-thorized; (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 remanded for further consideration they j are yet to be resolved; and 1
(c) Applicant's claim that it has met the conditions re-quired to satisfy 50.47(c) for the issuance of an operating 11-cense. 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 efforts" basis, coupled with (3) a 25% power limitation, will in toto more than constitute interim compensating measures Tp. 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?
Memorandum at 9-10.
In responding to the Board's concerns, it is worthwhile to repeat several points from LILCO's " Motion for Designation of Licensing Board and Setting Expedited Sched-ule to Rule on LILCO's 25% Power Request" that was filed with the. Commission on July 14,1987. There, LILCO stated:
I,.
.a.
[T]he 25% Motion does not clearly raise emergenc'y planning ,
issues. While it requests a decision pursuant to a provision of i the emergency planning regulations,10 CFR S 50.47(c)(1),;1t 1 takes emergency planning issues - the vast majority of.which have already been litigated - as given. The matters before it for resolution involve the level of risk extant at 25% op- l eration. They do not require the prior dispositive resolution of the few remaining outstanding emergency planning issues.
Indeed, they presume that those issues (whose dispositive res-olution would pave the way for issuance of a 100% license) l can remain unresolved at 25% power because of the reduced level of risk involved. I Motion for Designation at 7-8 (emphasis in original).
Thus, while LILCO agrees that S 50.57(c) gives all parties the right to be heard to j
the extent that they have contentions, that right'is not without limit. Instead, a party's -
right to a hearing is limited "to the extent that his contentions are relevant to the ac-tivity to be authorized." 10 CFR S 50.57(c). The issues relevant to LILCO's 25% motion j are different than those remaining in the emergency planning portion of LILCO's appli-cation for a full power license. -
Certainly, some questions about the LILCO Plan, including the realism issue, are still before this Board, and the adequacy of LERO's performance during the .
February 13,1986 exercise of the LILCO Plan is awaiting decision by another licensing board. However, these issues are not the same as those raised by LILCO's 25% power motion. The issues potentially raised by LILCO's 25% motion involve: (1) the probabilistic risk assessment performed by LILCO for 25% operation, (2) the i
comparability of the risks at 25% power to ones the Commission has already found to be l adequate to give reasonable assurance that public health and safety has been protected,-
and (3) the significance of any remaining emergency planning deficiencies given (a) the vastly reduced zone of risk, (b) the presence of a utility-organized and trained response l
organization and (c) the NRC's recent inclusion'of the realism. doctrine in its'regula-tions.E In addition, LILCO's motion for 25% . operation presents , an entirely 9/ Specifically, that doctrine recognizes that'in an actual emergency, " state and local government officials will exercise their best efforts to protect the health'and safety of the public, and . . . would. generally follow the utility plan," absent a better proposal of their own.10 CFR S 50.47(c)(1)(lii).
i independent ground for granting the motion - namely, Long Island's critical and urgent ~
need for additional electric power and its continuing need to reduce its dependence on imported oil for generating electricity. Motion for Designation at 12. That issue is unrelated to any pending emergency planning issue and could clearly be resolved by a new licensing board. l As a result, sufficiently discrete subject matters exist for assignment of the 25% -
motion to a separate licensing board. The vast majority of the issues involved in the motion relate to the probabilistic risk assessment and to the n'eed for power on Long Is-l land. Any emergency planning issues arising specifically in the context of 25% op-eration are minor in nature and do not require extensive knowledge of the prior emer-gency planning proceedings beyond the findings already published.
IV. Conclusion l
For the reasons stated above, the Board should conclude that LILCO has sub-mitted an adequate filing under S 50.57(c) and should request that a new Licensing Board be appointed to consider the motion in an expedited manner, Respectfully submitted,
"& . U ::
Dohald P. Irwir(/
James N. ChrisTman /[/
Lee B. Zeugin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 6,1987
^
y
. LILCO, November 6,1987 00CKETED USNRC !
t
'87 NOV -9 P3 48 ;
CERTIFICATE OF SERVICE-0FFICE OF $CCat:1ARV 00CMCilNG & SERVICf, BRANCH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-6 I hereby certify that copies of LILCO'S BRIEF ON 25% NJdER QUESTIONS were served this date upon the following by hand as indicated by one asterisk, by Federal Express as indicated by.two asterisks, or by first-class mail, postage prepaid.-
Morton B. Margulies, Chairman * - Atomic Safety and Licensing <
Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 - 1 East-West Towers, Rm. 407 :
4350 East-West Hwy. George E. Johnson, Esq.
- Bethesda, MD 20814 Richard G. Bachmann, Esq. _.
U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline
- 7735 Old Georgetown Road !
Atomic Safety and Licensing (to mallroom)
Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 Herbert H. Brown, Esq.
- 4350 East-West Hwy. Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Karla J. Letsche, Esq. ;
Kirkpatrick & Lockhart ' j Mr. Frederick J. Shon
- South Lobby - 9th Floor Atomic Safety and Licensing 1800 M Street, N.W.' l Board Washington, D.C. 20036-5891
- U.S. Nuclear Regulatory Commission j
East-West Towers, Rm. 430 Fabian G. Palomino, Esq. **
4350 East-West Hwy. Richard J. Zahnleuter, Esq.
Bethesda, MD 20814 Special Counsel to the Governor Executive Chamber Secretary of the Commission Room 229.
Attention Docketing and Service - State Capitol j Section Albany, New York 12224 j U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Mary Gundrum, Esq.
Washington, D.C. 20555.
Assistant Attorney General-120 Broadway Atomic Safety and Licensing Third Floor, Room 3-116 Appeal Board Panel . New York, New York .10271 -
t U.S. Nuclear Regulatory Commission Washington, D.C. 20555
-k Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency IS3 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq. **
Stephen B. Latham, Esq. ** Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 V'est Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 Lbe B. Ze'ugin g Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 6,1987
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