View source for CLI-85-12, Order CLI-85-12 Denying 850306 State of Ny & Suffolk County Renewal of Request for NRC Supplementation of Facility Fes Required by Nepa.Separate View of Commissioner Asselstine Encl.Served on 850620

{{Adams
| number = ML20127A983
| issue date = 06/20/1985
| title = Order CLI-85-12 Denying 850306 State of Ny & Suffolk County Renewal of Request for NRC Supplementation of Facility Fes Required by Nepa.Separate View of Commissioner Asselstine Encl.Served on 850620
| author name = Chilk S
| author affiliation = NRC OFFICE OF THE SECRETARY (SECY)
| addressee name = 
| addressee affiliation = NEW YORK, STATE OF, SUFFOLK COUNTY, NY
| docket = 05000322
| license number = 
| contact person = 
| case reference number = CON-#285-518
| document report number = CLI-85-12, OL-4, NUDOCS 8506210316
| document type = LEGAL TRANSCRIPTS &amp; ORDERS &amp; PLEADINGS, ORDERS
| page count = 12
}}

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{{#Wiki_filter:Bis                                                                                 i i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Chainnan                       )5C Thomas M. Roberts James K. Asselstine Frederick M. Bernthal                         '85 JUN 20 P2:44 Lando W. Zech, Jr.
YOCNYiSGYYGyd:
BRANCH In the Hatter of                                   M JUN 201985 LONG ISLAND LIGHTING COMPANY                    Docket No. 50-322-OL-4 (Shoreham Nuclear Power Station)
ORDER CLI-85-12 On March 6,1985, the State of New York and Suffolk County filed a
        " Renewal of Request for NRC Supplementation of the Shoreham FEIS As Required by NEPA." For the reasons set forth below, we deny the request.I    In support of their request, Intervenors assert that because of the uncertainty of full-power operation due to the State and County's refusal to participate in emergency planning, the Consnission is required under the National Environmental Policy Act to supplement the 1977 1
0n November 20, 1984, Suffolk County filed a Petition for Review of ALAB-788. In its Petition, Suffolk also requested the Comission to reconsider CLI-84-9, our earlier decision not to prepare an SEIS. The Commission declined to reconsider CLI-84-9 in the context of the Petition for Review. Letter of April 18, 1985 from S. Chilk to H. Brown. That decision was not a denial of Intervenors' March 6 request. Intervenors renewed their NEPA arguments in their " Petition for Reconsideration of CLI-85-1," dated May 7,1985. Id. at 41.
8506210316 850620 gDR    ADOCK 05000322 b                               PDR
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2                                             j Shoreham Final Environmental Impact Statement (EIS).            In that EIS, the Comission weighed the costs and benefits of full power operation.
Intervenors in essence argue in their Request that because of a decision by a New York Supreme Court adverse to LILCO on emergency planning issues, it is reasonably foreseeable that Shoreham will never operate at full power.2 Thus, Intervenors contend, because low-power testing will further irradiate the core and contaminate the remainder of the primary coolant system without the compensating benefits of full-power opera-tion, i.e., generation of electricity, the EIS should be supplemented to assess the costs and benefits of low-power testing assuming no full-power operation.         It is unclear whether Suffolk County continues to press this argument, however. The Suffolk County Attorney told us in a June 4 oral argument that the County will begin to participate in the Shoreham emergency planning process, that full-power operation is possible, and that the Commission is not required under NEPA to prepare an SEIS for low-power operation of Shoreham. On the other hand, at the same oral argument, some County legislators asserted that this is not "the County's" position.
Regardless of what is "the County's" position, for reasons we have given earlier, we do not believe that uncertainty over the pending full-power issues mandates a Supplemental Environmental Impact Statement or some renewed cost / benefit analysis.        See CLI-84-9, 19 NRC 1323 (1984);10C.F.R.51.92(a). While the New York state and federal court 2
Since that time, there has also been a federal District Court decision adverse to LILCO.

3 decisions affect the degree of uncertainty over whether Shoreham will get a full-power license, so do many other interlocutory events, the County's apparent change of position being just one recent example. The present uncertainty over Shoreham's full-power license is not a new factor outside the range of possibilities initially considered by the Comission when it determined that the EIS for full-power operation satisfied NEPA despite the pendency of Shoreham contested issues.
Moreover, the " uncertainty" which the intervenors perceive regard-ing eventual full-power operation of Shoreham stems from their view that adequate emergency planning cannot be achieved, even with their coop-eration. Accordingly, the intervenors have (at least until recently) refused to cooperate in the plan, apparently as a way to prevent any further steps toward what they regard as a quixotic venture.
We note that our Licensing Board in its decision of April 17, 1985 has found that an adequate emergency plan is in fact achievable if the State and County participate in emergency planning, as all other local and state jurisdictions have done when so called upon. Like any litigants before us, these intervenors may challenge the adequacy of this Board's determination, but they may not simply substitute their own judgment for the Comission's regarding what the public health and safety requires for licensing the operation of a nuclear power plant.
Congress has entrusted the protection of public health and safety in matters concerning nuclear power to the Comission, not to Suffolk County or New York State. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comission, 461 U.S.190, 1                 205(1983). Accordingly, we believe that the County and the State must

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i recognize that when a health and safety issue has been fully litigated before the Ccmission, the Commission's final judgment, subject to judicial review, must be the controlling determination, even if some continue to disagree with it.
Thus, while we express no opinion concerning the Board's decision while it remains under administrative review, we are confident that if the Commission upholds the Licensing Board's finding that an adequate emergency plan is feasible with state and local participation, the State and County will accede to that judgment and will provide the participa-tion needed to make the plan successful. In short, we shall not take as an element of uncertainty in the eventual full-power operation of Shoreham the possibility that either the State or the County will refuse to cooperate with LILC0 on the basis of their own conception of what radiological public health and safety requires, rather than on the findings of the Commission.
Furthermore, even were we required to perform some cost / benefit analysis at this interim stage of these proceedings, we would not say that the uncertainty of Shoreham full-power operation is so great that it necessitates avoidance of the environmental effects of low-power testing. The environmental effects of low-power testing are well known, i.e., moderate irradiation of the core and contamination of the remain-der of the primary coolant system, with no significant impact on the surrounding environment by releases of effluents during normal opera-tion. These effects of low-power testing are subsumed in the FEIS's analysis of the far greater, but nonetheless very small impacts from

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full-power operation. In our view, the benefits of low-power operation clearly outweigh the environmental costs.
The primary benefit of early low-power operation is that it will allow the early discovery and correction of unforeseen but possible problems which may prevent or delay full-power operation at an enormous expense to LILC0 and/or its customers.3 Thus, early low-power testing greatly increases the possibility that if and when the plant is ready for full-power operation, the benefits of that op'eration will be re-alized without delay. This benefit does not require speculation over the outcome of the full-power proceeding. So long as an applicant is willing to invest the substantial effort and money necessary to attempt to obtain a full-power license, the possibility of full-power operation at a future date gives substantial value to low-power testing. More-over, whenever a low-power motion has been filed where full-power issues are also pending (a connon occurrence), there is always uncertainty over i      the outcome of the full-power proceeding. Delaying the low-power j      license until that uncertainty is eliminated irretrievably deprives the applicant and its customers of the substantial benefits of early j      low-power testing.
To refuse to authorize low-power operation whenever there is l
!      uncertainty over whether full-power operation will be authorized would i
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We note that low-power test programs for recently-licensed reactors have identified problems which have taken many months to correct and consequently have delayed full-power operation. At Palo Verde, a pressurized water reactor, for example, a coolant pump design I      problem identified during initial testing took over one year to correct.

6 ignore Comission regulations which allow low-power operation when there is reasonable assurance that it will present no undue risk to t.he public health and safety notwithstanding the pendency of full-power issues.
10CFR550.57(c). This regulation is premised on the idea that the inherent benefits of early low-power testing outweigh the uncertainty that a full-power license may be denied. We see no reason to refuse to recognize this premise in this case. In short, the sooner low-power testing is begun, the greater the probability that it will serve the purpose for which it is intended, i.e., to facilitate the earliest possible full-power operation of the plant in the event that the Comis-sion finds reasonable assurance that full-power operation will present no undue risk to the public health and safety.
Accordingly, we again deny Intervenors' request to delay Shoreham low-power operation pending the preparation of an SEIS.
Comissioner Asselstine disapproved this Order and provided the attached separate views. In response to the separate views of Comissioner Asselstine regarding the value of low-power testing, we point out that the principal benefits of low-power testing are threefold:    (1) testing and evaluation of plant systems which cannot be tested or operated at zero power conditions; (2) evaluation, assessment and familiarization with technical specifications and implementing procedures for the operation of the plant while at low-power; (3) operator and plant staff experience on the actual plant in a critical
;      but still low-power operation.
During low-power testing, plant systems such as control systems, turbines and electric power conversion systems, and other steam driven

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equipment can be tested and functionally evaluated. Also during low-power testing, core physics calculations, basic thermal-hydraulic performance, and other core operating parameters can be further verified.          If necessary, repairs or modifications of equipment and operating procedures may be made.                 Low-power testing provides an opportunity to assess technical specifications and implement procedures which cannot be accomplished at zero power. The low-power test program affords the operator and plant staff valuable experience in the actual operation of the plant and of the plant systems interactions, which otherwise cannot be totally compensated for by simulator training.
Low-power test programs for recently licensed BWRs have provided invaluable experience to the plant staff and enabled testing of plant systems.         For example, at Limerick the turbine and power conversion systems were successfully tested, and experience was gained at Grand Gulf and Limerick on implementing the technical specifications.                 In addition, historically, plant equipment testing led to the identification and timely correction of equipment and procedural problems.
It is so ORDERED.
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                                         .                k-                    ( dbliQ    '
k%#w;*               f                   r             SAMUE4M HILK Secretary 01; the Comission Dated at Washington, D.C.
this")O day of June, 1985

  ,                                                                             I SEPARATE VIEWS OF COMMISSIONER ASSELSTINE The Shoreham case is unique. In no other case have the state and local governments refused to participate in emergency planning and preparedness. In no other case have both state and federal courts found that, in the absence of governmental participation in emergency response, the utility does not have the legal authority to carry out portions of its emergency plan. Before a full power operating license can be issued for Shoreham, the Comission must be able to find that "there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 CFR 50.47(a)(1)(Emphasisadded). Absent participation by the State and County in emergency planning and preparedness, the Comission is unlikely to be able to make such a finding.
There is then a reasonable likelihood, which is much more likely than when the original EIS for Shoreham was completed, that Shoreham might never receive a full power license. Given this change in circumstances, the Comission should perform an environmental evaluation, including a cost-benefit balance, of the issuance of only a low power license. The somewhat crude weighing of costs and benefits in the Commission's order is clearly not sufficient.
The Comission's response to this is three-fold. First, the Comission says that it will not consider as an element of uncertainty the refusal of the State and County to participate in emergency planning and

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0 preparedness for Shoreham. The Comission has confidence that, if the Comission finds that an adequate emergency plan is feasible with state and local participation, the State and County will accede to that judgment and will in fact participate in emergency planning and preparedness. The Comission's reasoning is overly optimistic at best, at worst simply ignores reality. The Comission refuses to take the statements of the State and County at face value,I but prefers to rest its decision on some hope that the State and County will "see the light." Further, if the Comission intends to rely, in the face of continued State and County refusals to participate, on the Comission's confidence that should an emergency occur the state and local governments will in fact participate in an emergency response that confidence would hardly support a finding that the emergency plan will be carried out. And, if the State and County do not partcipate in planning and drills, the Comission's confidence certainly would not support a finding that the state and local governemnts can adequately carry out the plan. The Comission's refusal to recognize the State and County 1
Further, the Comission seems to base its confidence on the statements of the County Attorney that Suffolk County will begin to participate and upon the Suffolk County Executive's agreement with LILC0 to do so. I am not willing to be quite as optimistic as the Comission majority is on this score: there is a dispute between the Exective and the Legislature on the Executive's authority to carry out the agreement and in fact a New York state court has recently nullified the agreement at the request of the County Legislature; the State has not entered into the agreement or agreed to participate in the drill; and, even if the agreement is ultimately upheld there is nothing in the agreement which prohibits the County from litigating the results of the emergency drill.
This dispute could go on for quite some time.
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unwillingness to participate as creating uncertainty about the likelihood of full power operation at Shoreham is unfathomable.
The Commission next claims that uncertainty about the issuance of a full power license for Shoreham is not a new factor outside the range of possibilities initially considered by the Commission when it determined that the EIS for full power operation satisfied the National Environmental Policy Act(NEPA) despite the pendency of Shoreham contested issues. Obviously there is a possibility in every contested OL proceeding that some issue might arise that would prevent the issuance of a license to operate the plant.      However, the Shoreham case is not a case where, before the licensing proceeding has begun and without more information, the Commission is being asked to consider in the abstract whether some issue might possibly prevent operation of the l        plant. Rather, in this case we have significant new information which indicates that there might in fact Le a bar to full power operation. The question is whether in light of this new information the Commission should first consider the costs and benefits of that action before permitting contamination of the plant. I believe that reasoned decisionmaking requires no less. And, the caselaw indicates that the Commission may be legally required to do so.      See, Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368,1377 (9th Cir.1982).
Finally, even though it says it is not required to do so, the Commission then proceeds to conduct a crude balancing of the costs and benefits of permitting the plant to operate at low power. The Commission says that i
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the costs have already been considered because they are subsumed within
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f f                                             the greater effects of full power operation. And, according to the
;                                             Comission, the substantial benefits of low power testing clearly
'l outweigh the costs. Under normal circumstances the Commission might have l                                             a point. However, this case is unique. New circumstances have arisen I                                            which prevent the Commission from assuming that full power operation will occur. Thus, the Comission cannot merely assert that the effects of low power operation are subsumed in those of full power operation.
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)                                            Further, the benefits cited by the Commission2 assume that there will be j            ,
full power operation.                     If there will not be full power operation, then
)                                            there is no benefit to the early identification of problems which the i
l                                            Commission identifies as the primary benefit of low power operation.
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!                                            Clearly, the Commission's balancing was not a careful 'one.                                                   The l                                            Comission should carefully and in detail consider the costs, benefits
!                                            and likelihood of Shoreham never being permitted to exceed five percent                                                                         i
!                                                  2 Even the Commission's asserted benefits of low power testing are overstated. An operating license limited to 5 percent of rated power is
;                                            of limited utility to the operator of a boiling water reactor (BWR) such as Shoreham. Little testing can be accomplished at that power level that cannot also be completed without taking the reactor beyond cold i                                            criticality. _To do substantial testing of a BWR plant the operators
:                                            must be able to take the plant to 20 percent or more of rated power.
                                                                                                                                                                                             'i i-                                           Further, the Palo Verde experience in early identification of problems
[                                            does not support the Commission's argument. The design problems cited l                                            by the Comission at Palo Verde were discovered during the hot functional tests of the plant well before a low power license was issued. These extensive tests have already been completed at Shoreham.
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of power. The superficial, hurried effort reflected in the Comission's i
i                                                         order does not amount to a reasoned consideration of the issue.                                                                                                       ,
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