ML20213G344

Lilco Reply to Intervenor Opposition to Expedited Consideration of Lilco 25% Power Request.* No Basis Exists for Delaying Review & Disposition of Util Request to Give Intervenor Extension of Time

ML20213G344
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/12/1987
From:	LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
Shared Package
ML20213G347	List: ML20213G344 ML20213G363
References
CON-#287-3448 OL, NUDOCS 8705180242
Download: ML20213G344 (31)

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00fMETED uwe UNITED STATES OF AMERICA '87 NAY 12 P4 :08 NUCLEAR REGULATORY COMMISSION OFFEE . - ,

Before the Commission DOCKET mj ,:

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL

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(Shoreham Nuclear Power Station, )

Unit 1) )

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LILCO'S REPLY TO INTERVENORS' OPPOSITION TQ EXPEDITED CONSIDERATION OF LILCO'S 25% POWER REQUEST Of Counsel:

Anthony F. Earley, Jr.

Long Island Lighting Company 175 East Old Country Road Hicksville, New York 11801 W. Taylor Reveley, III'-

Donald P. Irwin Hunton & Williams P.O. Box 1535 l Richmond, Virginia 23212 DATED: May 12,1987 2

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

_Before the Commission

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL

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(Shoreham Nuclear Power Station, )

Unit 1) )

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LILCO'S REPLY TO INTERVENORS' OPPOSITION TO EXPEDITED CONSIDERATION OF LILCO_'S 25% POWER REQUEST L PRELIMINARY STATEMENT1/

LILCO filed its 25% Power Request on April 14 and served Intervenors via Federal Express. Seeking to block expeditious consideration of this Request, Intervenors have filed two pleadings and written one letter. First, Intervenors filed their Response on April 27, 1987 and served LILCO by regular mail (which LILCO received on May 1). On May 5, Intervenors filed their Motion to Stop 1/ Suffolk County, State of New York and Town of Southampton are referred i

to individually where appropriate and collectively as "Intervenors." Intervenors'

" Response in Opposition to LILCO's Motion for Expedited Commission Considera-tion" dated April 27,1987 is referred to as " Response." Intervenors'" Motion For Immediate Order Directing NRC Staff to Cease Unauthorized Review of LILCO's Request for 25% Power Operating License"is referred to throughout as " Motion to Stop Review." LILCO's filing entitled " Request for Authorization to Increase Power to 25% and Motion for Expedited Commission Consideration" is referred to throughout as "25% Power Request" or " Request." All emphasis has been added unless otherwise noted.

Review. Then, oh May 7, Intervenors also wrote to Victor Stello, Executive Di-rector for Operations, NRC, via telecopier and demanded that the Staff immedi-ately cease all review of LILCO's Request.

Intervenors' Response, their Motion to Stop Review and the letter m dir.

Stello do not, in large measure, deserve substantive response; they repeatedly mischaracterize, mislead and misstate; they are a mixture of innuendo, reckless accusation and artful obfuscation. The Motion to Stop Review and letter to Mr.

Stello particularly are as devoid of substance as they are intemperate in tone.

They are transparent attempts to accomplish by intimidation what Intervenors cannot win on substance. .

Point-by point repudiatfon of Intervenors' statements is neither war-ranted nor productive. Rather, this Reply focuses on those few issues LILCO be-lieves will benefit from further comment. Specifically, this Reply demonstrates that:

l (A) LILCO's 25% Power Request does not require or in-volve a waiver of or exemption from any regulation.

I Compliance with S 50.47(c)(1)in the face of alleged

! deficiencies under S 50.47(b) constitutes full compil-ance with the Commission's regulations and requires no exemption or waiver.

(B) Intervenors' position on Long Island's need for power is inaccurate, unsupported and unsupportable. Sig-nificantly, Intervenors' position on need for power represents a dramatic departure from the long-standing energy policy of New York State.

(C) Intervenors have not, despite their attempts at his-torical revisionism, consistently opposed Shoreham l

! on grounds of need for power, emergency planning, or any other basis, even since TMI. Their emergen-cy planning opposition aid not begin to crystallize until 1982 (three years af ter TMI) in the case of l

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Suffolk County and until 1983 (four years af ter TMI) in the case of New York State.

(D) Contrary to Intervenors' assertions, it is apparent that the remaining emergency planning issues are caused by the Intervenors' own refusal to cooperate rather than by any fundamental problems with emergency planning at Shoreham.

(E) Intervenors' remarks concerning the pace of review of LILCO's 25% Power Request furnish no basis for blocking Staff and Commission expeditious review.

An Intervenor's opportunity to review is not the right to redo. Further, New York State and Suffolk County are anything but small or impecunious. They have the resources to review LILCO's Request on the same time schedule as the NRC Staff.

II. ARGUMENT ,

A. LILCO'S 25% Power Redbest Does Not Require or Involve Walver or Exemption Intervenors' Response repeats ritually the claim that LILCO's 25% Power Request requires a waiver or exemption from the regulations. They argue again and again that LILCO's 25% Power Request asks the Commission for a " favor," or to alter or disregard the regulations. That is simply not true; LILCO does not seek to change the 10-mile EPZ, nor does it seek to operate Shoreham without complying with S 50.4f. On the contrary, LILCO is committed to preserving the 10-mile EPZ around Shoreham and to keeping in full force and effect its Emer-gency Plan and its well equipped, trained and drilled Local Emergency Response Organization (LERO). Far from seeking a favor or waiver of the regulations, all LILCO seeks in its 25% Power Request is what the plain language of 5 50.47(c)(1) permits - namely,

arropportunity to demonstrate to the satisfaction of the Commission that deficiencies in the [ emergency plan] are not significant . . . (or] that adequate in-terim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

Nor is it plausible, as Intervenors argue, that S 50.12(a) must be satisfied in addition to S 50.47(c). On the contrary, the text of the regulation makes unmistakably clear that where, as here, there are deficiencies or alleged deficiencies in the emergency preparedness requirements of S 50.47(b), the Com-i mission is still empowered to permit plant operation above 5% if any one of the three factors in S 50.47(c)(1) is demonstrated by the applicant. In other words, an applicant's successful demonstration under S 5037(c)(1) constitutes effective compliance with the emergency J[eparedness regulations in S 50.47(b) and no 4

waiver or exemption is required. ndeed, any other construction of S 50.47(c)(1)

( violates the plain meaning of the provision and renders it mere surplusage. If, as i

the Intervenors suggest, an applicant must satisfy 5 50.12(a) as well as S 50.47(c)(1), there would have been no reason to promulgate 5 50.47(c)(1). By l 2/ Section 50.12(a) was promulgated before S 50.47(c)(1) and thus should be understood to have been modified or narrowed in its reach by 5 50.47(c)(1). In-deed, the Commission confirmed this when it modified S 50.12 in 1985. At that

. time, the Commission made explicit its intention that S S0.12(a) should not apply if, as in the case of 5 50.47, the regulation in question provided an alternative

' method of compliance. In the Commission's words, i

l [Section] 50.12(a) is the exemption provision that i applies renerally to the provisions of 10 CFR Part 50.

I If another regulation in Part 50 provides for specific j- exemption relief, or for alternative methods of com-l pliance, the criteria of the specific regulation are the appropriate considerations. If the exemption criteria in the specific regulation are met, the rule has been 1 (footnote continued) i

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J including S 50.47{c)(1) in the regulations, the Commission has made evident its j intent that the emergency preparedness requirements of S 50.47(b) are flexible and may be satisfied either by meeting each of the requirements in S 50.47(b) or, if deficiencies exist, by meeting the requirements of 5 50.47(c)(1). Either l showing by an applicant constitutes full compliance with the regulations and means that no waiver or exemption is required.

f Commission and Board decisions support this reading of 5 50.47(c). For example, a Commission decision in this proceeding, Long Island Lighting Co.

( (Shoreham Nuclear Power Station, Unit 1), CLI-86-13,24 N.R.C. 22 (1986), is es-l pecially persuasive on this point. There, the Commission rejected the Interve-i j nors' contention that the emergency planning regulations could not be met ab-l- sent State and County cooperation. While. noting that a utility may encounter

! difficulty complying with the detailed planning standards in 10 C.F.R. S 50.47(b)

. without local or state governmental cooperation, the Commission went on to note that it intended its rules to be flexible and that it had an obligation to con-sider whether the emergency planning requirements could be met under l

l 5 50.47(c)(1). Specifically, the Commission stated:

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(footnote continued)

complied with, and no exemption under S 50.12(a) is i necessary. It is only in those cases where the specific ,

exemption or alternative compliance criteria cannot be satisfied, that the application of the general criteria in S 50.12(a) will be appropriate. If the spe-i cific exemption criteria, or alternative methods of r compliance, can be satisfied, there is no need to also satisfy the criteria of S 50.12(a).

50 Fed. Reg. 50775 (Dec.12,1985).

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As we have stated before, we are legally obligated to consider whether a utility plan, prepared without government cooperation, can pass muster. A utility plan might pass muster under 10 CFR 50.47(c). Sec-tion 50.47(c) provides for licensing notwithstanding noncompliance with the NRC's detailed planning standards: (1) if the defects are "not significant"; (2) if there are " adequate interim compensating ac-tions"; or (3) if there are "other compelling reasons".

The decisions below focus on (1) and (2) and we do likewise.

4 24 N.R.C. at 29.

Significantly, the Commission made no mention whatever in this context of any requirement to seek an exemption under S 50.12(a) 0: waiver under S 2.758. This omission is neither accidental nor insignificant; it confirms what the text of 5 50.47(c)(1) plainly says - satisfaction of 5 50.47(c)(1)in the face of

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deficiencies under S 50.47(b) demonstrates compliance with S 50.47(b). No waiv-er of or exemption from the requirements of S 50.47(b) is required.

Nor is this Shoreham Commission decision an isolated example; other au-thority exists to support the conclusion that neither a waiver nor an exemption is required for S 50.47(b) deficiencies where, as here, there is a satisf actory dem-onstration under S 50.47(c)(1). Thus, the Appeal Board in San Onofre and the Li-censing Board in Shoreham reached the same result; they applied S 50.47(c)(1) l without even mentioning exemption or waiver.3/ Obviously, none is needed.

3/ In Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680,16 N.R.C.127 (1982), the Appeal Board denied inter-venors' motion for a stay pending appeal of an initial decision authorizing issu-l ance of a full power operating license. Intervenors there argued that no license I should issue in the face of the applicant's inability to comply fully with I

(footnote continued) l

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Further confirmation of this conclusion is provided by the decisions ap-plying S 50.54(s)(2), the licensee counterpart of S 50.47(c)(1). This section per- -

, mits the holder of an operating license to avoid shutdown in the face of S 50.47(b) deficiencies provided a satisfactory showing can be made concerning i the insignificance of the deficiencies, the adequacy of interim compensating ac-

! tions or other compelling reasons. At least one Licensing Board has explicitly recognized the analogous or parallel relationship between S 50.47(c)(1) and 5 j 50.54(s)(2).S! The significance of this relationship is that the reported cases (footnote continued) .

S 50.47(b). The Appeal Board, affirmed the Licensing Board's conclusion that there was reasonable assurance that adequate interim compensating measures.

had been or would be taken on such matters, including the absence of siren cov-erage for certain populated areas. See 16 N.R.C. at 132,142. Significantly, nel-

ther the Licensing Board nor the Appeal Board even mentioned waiver or ex-emption. Manifestly, the Licensing and Appeal Boards in San Onofre considered a satisfactory showing under S 50.47(c)(1) to be a complete remedy for any deficiencies under S 50.47(b).

i Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-83-22,17 N.R.C. 608 (1983), reached essentially the same result. There, the

- Board denied Suffolk County's motion to terminate the proceeding, holding that under the regulations, an applicant for an operating license must have an oppor-4 tunity to prove that an emergency plan meets the regulations even if a local government and state decline either to prepare or implement a response plan.

Specifically, the Board held that in the absence of one or more of the plans re-quired to be filed pursuant to S 50.33(q), an applicant must be granted an oppor-tunity to demonstrate the factors listed in S 50.47(c)(1). Nowhere in this deci-l sion is there any reference to a waiver or an exemption as an additional requirement beyond S 50.47(c)(1).

I 4/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-83-22,17 N.R.C. 608 (1983). There, the Board termed S 50.54(s)(2)"a provi-

sion parallel to S 50.47(c)(1)" and therefore found the Commission's opinion in Consolidated Edison Co. (Indian Point, Units 2 and 3), CLI-82-38,18 N.R.C.1698 *

(1982), relevant to the Shoreham Board's S 50.47(c)(1) decision.17 N.R.C. at 626; see also 17 N.R.C. at 626 n.19.

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l involving the application of S 50.54(s)(2) do not require exemptions or waivers.

Indeed, neither exemptions nor waivers under S 50.12(a) or S 2.758 are even mentioned in conjunction with the application of S 50.54(s)(2).W The plain im-port of these decisions is that a satisfactory demonstration of any of the 4

5 50.54(s)(2) factors --insignificance of the deficiencies, tne effectiveness of in-terim compensating actions or other compelling reasons - is sufficient for com-j pliance with the regulations. Satisfaction of S 50.54(s)(2), as with S 50.47(c)(1),

I' constitutes compliance with the Commission's regulations and requires no ex-emption or waiver.

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The only exception is an anomalous Appeal Board decision in the

{. Limerick litigation which reverged a Licensing Board and was in turn vacated as moot by the Commission.SI This decision, therefore, has no precedential value.II Indeed, on the analysis presented here, it is plain that the Limerick Li-i censing Board orders were correct in refusing to engraf t a S 50.12(a) waiver re-f quirement on top of a showing under S 50.47(c)(1).

l In the vacated Limerick Appeal Board decision, an effort was made to I distinguish the San Onofre decision on which LILCO here relies. The attempted 1

5/ See, eA, Consumers Power Co. (Big Rock Point Plant), LBP-82-60,16 N.R.C. 540 (1982), LBP-82-77,16 N.R.C.1096 (1982); Consolidated Edison Co.

j (Indian Point, Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3), DD-82-12,16 N.R.C.1685 (1982), CLI-82-38,16 N.R.C.1698 (1982), CLI-83-11,17 N.R.C. 731 (1983), CLI-83-16,17 N.R.C.1006 (1983). L I

! f/ PhiladelDhla Electric Co. (Limerick Generating Station, Units 1 and 2),_

! ALAB-809,21 N.R.C.1605 (1985), CLI-85-16,22 N.R.C. 459 (1985).

! 7/ Intervenors cite and rely upon the Appeal Board decision, yet fall to re-veal that the opinion was vacated by the Commission.  ;

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f distinctions are flot persuasive W and in any event, the vacation of the opinion i

removes its precedential value. The Limerick Appeal Board decision incorrectly read a S 50.12 requirement into S 50.47(c)(1), but correctly recognized that the i San Onofre decision was on point to the contrary. San Onofre survives; Limerick i

does not.

B. Intervenors' Position on Need for Power Is Inaccurate and Unsupportable Intervenors' Response asserts, incorrectly, that the sole basis for expedi-l l tious review of LILCO's Request is the immediate need for Shoreham's power and i

that no such need exists.E Response ar6,17-18. Intervenors are wrong on both 3/ At issue in Limerick were the problems related to evacuation of more

, than 2,000 prisoners from a maximum security prison within the 10-mile EPZ.

The Limerick Board sought to distinguish San Onofre on the grounds that (1) the applicants in San Onofre did not expressly seek an exemption pursuant to 5

50.12, and (11) no outstanding contentions remained. The absence of a request for a waiver or exemption is wholly insignificant. If an exemption or waiver is re-quired, then that requirement must be met whether or not the applicant or 11-4 censee makes a request. Similarly insignificant is the absence or presence of

outstanding contentions. The only significant issue is whether there are emer-

gency planning defielencies under S 50.47(b) and whether operation should be al-

! lowed notwithstanding such deficiencies because the applicant has demonstrated under S 50.47(c)(1) that the deficiencies are insignificant, that interim compensating actions have been or will be taken promptly or that there are other compelling reasons. As the Limerick Licensing Board correctly recog-nized, 5 50.47(c)(1) is the only standard to apply. See PhiladelDhia Electric Co.

(Limerick Generating Station, Units 1 and 2), ALAB-809, 21 N.R.C.1605,1611 (1985).

1 2/ Intervenors characterize LILCO's Request as a request for unprecedented operating rights. Response at 3. Nothing could be further from the truth.

LILCO seeks only to demonstrate, as provided for in S 50.47(c)(1), that it now satisfies the emergency planning regulations at 25% power. As Section A of this Reply shows, this regulation has been similarly used numerous times in the past.

Upon demonstrating compliance with the regulations, LILCO, like other licens-ees, has a right to operate its plant. And authorization for interim operation at i less than full power, pending resolution of full power issues, is not unprecedent-i ed. LL., Ducuesne Light Co., (Beaver Valley Power Station, Unit No.1),

j LBP-76-23,3 N.R.C. 711 (1976).

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counts: there is in immediate need for power, and that need is not the sole basis for expeditious review.

The reliability of Long Island's power supply is itself a sufficient reason for expeditious review of LILCO's Request, but it is not the sole reason. Rather, the plain truth of the present situation demands action. Shoreham is completed, ready to operate, inspected, adjudicated and affirmed as safe. Emergency plan-ning is feasible.N The LILCO Plan is valid and exercised, and remaining issues are insignificant at 25% power. Request at 103. Shoreham's operation at any meaningful power level will reduce dependence on foreign oil. This is in the na-tional interest. See Request at 117-21. Tairness and. equity mandate prompt ac-tion. SE Request at 121-46., Intervenors' strategy is manifest: litigate Shoreham to death. Opposition to expeditious review of the 25% Power Request is just another in a long line of delaying tactics consistent with this overall strat-egy.

Notwithstanding Intervenors' unsupported and unsupportable analysis of the need for power on Long Island, that need is here now, and Shoreham is the best and most reliable means of helping to meet the need. As set forth in the at-tached Affidavit of Adam M. Madsen, the Intervenors' analysis is flawed, as is the Davis Affidavit on which it relles. In particular:

10/ See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-85-31,22 N.R.C. 410, 427 (1985).

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(1)- It is tailored to reflect the State's opposition to Shoreham.

(11) The State Energy Office (SEO) forecasts are at odds with the pssessments of other respon-sible agencies.M/

(iii) The options suggested by the SEO are already incorporated and accounted for in LILCO's analysis.

(iv) The electrical reliability situation on Long Is-land is not adequately considered.

Madsen Affidavit at 16.

1. SEO Forecast Is Tallored to Reflect State's Opposition As recently as 1983, the ,

long-standing New York State energy policy recognized the importance of Shoreham. Significantly, since 1984, concurrently with the inception of the State's out-and-out opposition to Shoreham, the SEO has consistently underforecast the demand for electricity on Long Island. These forecasts are contrary to actual trends, but have been supportive of the State's opposition to Shoreham. The Davis Affidavit presented by the Intervenors relles heavily on a flawed 1985 SEO forecast that was subsequently discredited and re-pudiated by the New York Power Pool (NYPP). The 1985 SEO forecast manipu-lated projected peak demand and was inconsistent with Long Island's booming M/ Intervenors claim that the power supply situation on Long Island is pecu-liarly within the expertise of New York State, not the NRC. Response at 18; see also Response at 6. While it is presumptuous for Intervenors to claim the NRC has no expertise in, or ability to consider, this subject and to impugn the ex-pertise of other federal agencies, it is disingenuous of them to ignore recent re-ports of quallfled entitles such as the New York State Public Service Commis-sion, the New York State Power Pool, and 'he North American Electric Reliability Council. See Madsen Affidavit at 115.

economy. The Davis Affidavit now acknowledges a higher peak load growth forecast of 1.9% per year, but the underlying analysis has not been made public and no details are provided. Based on recent experience, statements relying on the current analysis must, at the very least, be viewed with caution. Madsen Af-fidavit at 114-8.

2. SEO Analysis Is Contradicted by Expert Studies that Confirm Declining Electric Supply Reliability i

The Intervenors' Response, based on the Davis Affidavit, is at odds with studies by several expert organizations that have verified the marginal electric reliability situation on Long Island. Spscifically,1986 reports by the New York 1

State Public Service Commissio,n (PSC), the New York Power Pool (NYPP), and the North American Electric Reliability Council (NERC) all agree that Long Is-land is currently experiencing severe capacity and reliability problems that will worsen without new installed capacity on Long Island. The NYPP 1987 Integrat-ed Planning Strategy confirms the 1986 reports, and further states that if Shoreham is not permitted to operate, more than just Long Island will be affect-ed. Madsen Affidavit at 119-10.

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3. LILCO's Assessment Already Accounts for the Intervenors' Recommendations Each of the steps suggested by the Davis Affidavit as obviating the need

! for Shoreham has either been included in LILCO's assessment of need for power, or cannot be achieved in the time frame suggested by the SEO. Madsen Affidavit at 118; see also Davis Affidavit at 1110,11,29.

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LILCO's analysis clearly included increasing the capacity of the 345 KV Long Island Sound Cable proposed by Intervenors. Madsen Affidavit at 119. It would take a minimum of three years to modify LILCO's system to increase im-ports from Connecticut,W and even then such imports might be severely re-stricted by available supply from Connecticut. Madsen Affidavit at 120. The use of Shoreham's oil-fired diesels in lieu of 809 MW non oil-fired base load ca-pacity is an absurd trade, and currently restricted. Madsen Affidavit at 121.

Small power production, while included to the extent feasible by LILCO's analy-sis, cannot be expanded as rapidly as suggested by the SEO. Indeed, the SEO's projection for the year 2000 would require 85% of all new, non-hydro sources projected by the SEO for the entire State to be lccated on Long Island. Davis Affidavit at 111; Madsen Affid'avit at 122. LILCO's forecast already includes more gain from conservation and load management than that suggested by the SEO. Madsen Affidavit at 123; Davis Affidavit at 1110,11. Finally, LILCO has already begun work on a nominal 200 MW of new combustion turbine capacity. It is unlikely that this capacity can be available before 1990. Madsen Affidavit at 1 24.

12/ A misleading May 10 New York Times article attached to the Madsen Af-fidavit incorrectly implies that Long Island's need for power could be solved with an additional 200-300 MW of power Consolidated Edison (" Con Edison") would sell to LILCO. As the Madsen Affidavit confirms, however, LILCO's interconnec-tions permit importation of no more than a total of 650 MW. All of LILCO's analyses assume this amount of power can and will be obtained whenever needed, whether or not under firm contract. The point is that LILCO might enter into firm contracts for large quantities of additional power but it would be unable to transport it onto Long Island because of transmission limitations. The New York Times article is therefore misleading in its implications. Madsen Affidavit at 1 37.

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Particulaily misleading is the Intervenors' claim that Con Edison's barge-mounted gas turbines could be used in a crisis to increase LILCO's capacity.M Response at 20. As Intervenors must well know, LILCO and others have already attempted to pursue this option with Con Edison. To date, however, Con Edison has maintained they cannot be moved because of the needs of its own system.M Further, investigations to date indicate the barge units could not be moved and 1

utilized rapidly. Indeed,' LILCO's preliminary investigations show that six to

[ twelve months would be required to obtain the necessary permits and approvals to use these units. An additional six to twelve months would thus be required to l transfer, install and connect the barge, mounted turbines. Madsen Affidavit at 136. For example, special mooring facilities would be required to ensure proper l

operation of the units.

In sum, Intervenors' suggestions on alternate sources of power are not the answer. Some are unavailable and the others are already accounted for in LILCO's analysis.

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} M/ It is open to question whether or not Intervenors' Response accurately re-flects the Davis Affidavit. The Response indicates that the State could and would direct that Con Edison's barge-mounted units be used by LILCO if there

! were a need. Response at 20. The Davis Affidavit, however, merely states that 1 the use of one such unit could be pursued in a time of need, subject to the finan-J cialinterest of Con Edison. Davis Affidavit at 129.

M/ The May 10 New York Times article is also incorrect in its suggestion that i LILCO could obtain the barges on request. Mr. Madsen reconfirmed that Con 3

Edison is unwilling to allow LILCO to use these barges. Madsen Affidavit at 1 37.

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4. Intervenors Mischaracterize Long Island's Electric Reliability Situation Intervenors claim that Long Island's electric service reliability will not be significantly different from the last two years during which only one voltage reduction was experienced, that LILCO overstates its required reserve margin, and that LILCO overstates average capacity unavailability. Response at 18-19.

In each case,Intervenors mischaracterize the actual situation.

The Davis Affidavit uses weather-normalized supply ratios for 1985 and 1986 to conclude 1987 will be like the two prior years. Davis Affidavit at 113.

While weather-normalized data are proper for forecasting, they do not provide a true picture of experience. Based on actual data, it is clear that reliability has declined for the past five years, with 1986 the worst year yet. Madsen Affidavit at 1 26. Voltage reductions were avoided during the summer of 1986 only be-cause of abnormally cool weather and unusually high generation availability dur-ing the peak. Madsen Affidavit at 127. Nevertheless, system difficulties were experienced on numerous occasions, requiring actions ranging from general pub-lic appeals to various restrictions on loads. Madsen Affidavit at 129.

Contrary to Intervenors' assertion, a reserve margin slightly greater than 30% is required to provide reliable electric service to Long Island. This value must be and is determined by detailed reliability analysis. An 18% reserve margin for each of its members is a goal of the NYPP, based on the aggregate statewide capacity resources and assuming unlimited interconnection capability.

Where, as here, the assumption of unlimited interconnection is not valid, higher individual reserves are necessary to satisfy any given reliability criterion.

Madsen Affidavit at 1130-32.

As to average capacity unavailability, Intervenors' approach is particu-larly misleading. Intervenors assert that the average level of unavailable capael-ty during peak periods from 1983 to 1986 was 468 MW. Response at 19. But this value was arrived at by considering a single experience (%, capacity unavailable at peak) for each of the four years, and averaging those four values.

Davis Affidavit at 11 18-20. This is meaningless. In actual fact, considering LILCO's daily experience, the average unavailability for the past three summers has been over 700 MW and daily unavailability could be much higher. Indeed, in the week prior to the 1986 summer peak, the actual unavailability value for the LILCO system was 1100 MW, Madsen Affidavit at 1127-28.

There is an immediate need for additional generating capacity on Long Island. This is but one of several compelling reasons, as set forth in LILCO's Re-quest, which dictate that authorization be given expeditiously to operate Shoreham at power levels up to 25% Additional compelling reasons pursuant to S 50.47(c)(1) are set forth in LILCO's Request at 117-46. Expedition is supported, indeed compelled by fundamental fairness to LILCO.

C. Intervenors' Change of Position on Emergency Planning Was Not Dictated by Changes in NRC Requirements Intervenors seek to characterize their change of position on Shoreham as simply consisting of actions to " respond forthrightly to the directive of Congress and the NRC that State and local emergency preparedness be upgraded and genu-ine." Response at 32. There is no reason to repeat here the background recited in LILCO's Request (at 127-37) which recounts the fif teen years of support for LILCO by the County and State and illustrates the truly epiphanal nature of the

transformation Shifolk County and New York State must have experienced in 1982-83. All that bears emphasizing here is that:

1. In the Shoreham construction permit hearings, emergency plan-ning was raised as an issue by the Lloyd liarbor Study Group, an intervenor. New York State, a full party to that proceeding, never supported Lloyd Harbor on it.

Indeed, Lloyd Harbor itself did not even preserve the issue in its unsuccessful ap-peal of the construction permit to the U.S. Court of Appeals for the D.C. Cir-cult.

2. If Suffolk County's polic,y reversal on Shoreham was merely a

" forthright" reaction to TMI, as Intervenors' Response would have all believe, it was neither expeditious nor consistent. The NRC promulgated its new regula-tions in 1980. That year and the following year, Suffolk County, through its Planning Department, was cooperating with LILCO to develop an offsite emer-gency plan - the same plan that eventually evolved into the current Shoreham offsite plan. Indeed, Suffolk County executed a formal contract with LILCO to develop the plan at LILCO's expense in September 1981 - two and a half years af ter TMI. It was not until the following spring - three years af ter TMI - when the plan was virtually complete, that elected officials of Suffolk County, using outside consultants rather than County experts, began to reverse their policy on Shoreham. The $600,000 study to which Intervenors refer (Response at 32) was merely the basis for the County's new-found position that emergency planning for Shoreham was impossible. That position, advanced in the marathon 1983-84 emergency planning proceedings through most of the same outside experts who had performed the study for the County, was the same position that was

decisively rejecte'd by the Licensing Board.E

3. If New York State's about-face on Shoreham was also merely a

" forthright" reaction to TMI, it was even more delayed and convoluted than that of Suffolk County. All through 1982, the State continued to support Shoreham, notwithstanding Suffolk County's developing hostility. Indeed, in the latter half of 1982, State officials continued to review the Shoreham plan originally devel-oped pursuant to the LILCO-Suffolk County contract, with an eye to final state-level approval by the end of the year. In December 1982, when Suffolk County brought suit in a New York State court to enjoin final, formal consideration (and adoption) of the plan by New York Stati, the State intervened on the same side as LILCO, asserting in its paperg that the State Disaster Preparedness Commis-slon would have recommended forwarding the Shoreham plan to FEMA, with the State's concurrence, for review and eventual acceptance. This was three and a half years af ter TMI. The State's formal turnabout began only in early 1983, when within hours af ter the Suffolk County legislature enacted resolutions in-tended to proscribe Shoreham as a matter of Suffolk County law, the new Gover-nor of New York State, Governor Cuomo, issued a statement that the State would not force an offsite emergency plan on an unwilling local government.

But later in that same year, Governor Cuomo found himself able to substitute State (and utility) resources for those of Rockland County, which had pulled out of emergency planning for the Indian Point plant. The State's intervention at Indian Point but not Shoreham was all the more remarkable, given the 15/ See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-85-12,21 N.R.C. 644 (1985), LBP-85-31, 22 N.R.C. 410 (1985).

unfavorable emergency planning circumstances of Indian Point relative to those of Shoreham. See Request at 136.

D. Re'nalning Emergency Planning _ Issues Are Synthetic Results of Governmentalllostilityt not Basic Proble_ms Intervenors devote a substantial portion of their paper to an apologia for their refusal to participate in emergency planning at Shoreham. Contrary to their assertions, however:

(1) the right to take positions in federal litigation based on their view of state-law police powers (s_ce Response at 11-12, 31) is not dispositive of the outcome of that federallitigation; and (2) the few remaining substantive issues affecting emergency pre-paredness at Shoreham (s_e_e Response at 26-28) do no_t reflect on either the basic feasibility of emergency planning for the plant or on the fundamental adequacy of LILCO's plan and organization; rather, they are all basically synthetic prob-lems, predicated on the absence of agreements which LILCO cannot compel, involving organizations which can reasonably be expected to cooperate, or facil-itics which can reasonably be expected to be made available, in the event of a real emergency where state and local governments participate in response.

Intervenors make much of the fact that New York State trial and inter-mediate courts have accepted their state-law police power claims as against a utility company.N The applicability of this commonplace state-law proposition 16/ See Response at 11,29, citing Cuomo v. LILCO, Consol. Index No. 84-4615 (N.Y. Sup. Ct. Feb. 20, 1985), aff'd, App. Div. Feb. 9,1987. LILCO is seeking to (footnote continued)

l to federally established and enforced emergency preparedness functions, howev-er, is an entirely separate matter, and it does not at all follow that the state-law positions of state and local governments override federal responsibilities of the NRC. Indeed, exactly the opposite has been held in the only two cases -- both of them dealing with Shoreham -- where federal courts have had to confront the issue directly. Both of them concluded that radiological emergency planning falls within the federal government's domain as part of the regulation of ra-diological health and safety, and thus outside the residual scope of " police pow-ers"lef t to the states.

In the first of these cases, Committee for an Orderly Energy Polley v.

County of Suffolk, 604 F. Supp; 1084 (E.D.N.Y.1985), afff'd, F.2d (2d.

Cir.1987), the primary question was whether Suffolk County was within its rights under the Atomic Energy Act of 1954 in refusing to participate in emer-gency planning for Shoreham. Judge Altimari held that it was, and that the Act did not compel it to participate. But he went on to state, in a portion of his de-cision never cited by Suffolk County (see Response at 10-11):

(footnote continued) appeal that decision to the New York Court of Appeals on the basis that the functions called for under the Shoreham offsite emergency plan are not pro-scribed under New York State law in any event. Intervenors' companion citation to Prospect v. Cohalan,65 N.Y.2d 867, 493 N.Y.S.2d 293 (1985) (Response at 11) is inapposite: all that was at issue in that case is the division of powers between the executive and legislative branches of local government - not any questions relating to the nature of emergency preparedness authority under state or feder-al law, i

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Certainly (Suffolk] County may not require LILCO to comply with the County's requirements for a sat-isfactory RERP (Radiological Emergency Response Plan]; whether LILCO's RERP is sufficient is a question for the NRC, and the County may not over-ride the NRC's judgment. . . . The County has not and cannot suDersede the judgment of the NRC on whether or noj a license should issue for Shoreham.

Once the NRC makes that decision the County's opinion on LILCO's RERP will become academic.

604 F. Supp. at 1094-95.

Judge Altimari also recognized that Congress had provided an alterna-tive mechanism for offsite emergency planning in the event states and localities refused to participate, namely, utility-sponsored plans:

Congress conside' red the possibility that a state or local government or both would f all to participate in emergency planning. Rather than require participa-tion, Congress provided that the utility could pro-vide a plan.

604 F. Supp, at 1096.

Perhaps even more on point, slightly over a year ago a U.S. District Court was called upon to decide the legality of a criminal ordinance (Local Law 2-86) that Suffolk County had enacted over the 1985 Christmas holiday in an at-tempt to block Shoreham's offsite emergency planning exercise scheduled for February 13,1986. Judge Wexler enjoined enforcement of Local Law 2-86, hold-ing that emergency planning for nuclear power plants was "well within the sphere of authority reserved for the federal government by Congress," and that the ordinance's attempt to veto an exercise was an unconstitutional invasion of the federal domain. Long Island Lighting Co. v. County of Suffolk,628 F. Supp,

l 654,664 (E.D.N.Y.1986) Judge Wexler's decision, which was never appealed, is worth quoting at some length:

Emergency planning for radiological hazards in the event of a nuclear power plant accident, as the leg-Islative history demonstrates. is well within the sphere of authority reserved for the federal govern-ment by Congress. Federal law encourages but does not require the states and localities to participate in emergency planning. Congress requires that the NRC, in conjunction with FEMA, will scrutinize any emergency evacuation plan rigorously, regardless of whether it is submitted by the state or by the utility.

The NRC has therefore established procedures that will enable it to evaluate a RERP, and off-site testing has been made part of those procedures. . . .

1 [B]y falling to Suffolk County im, articulate permissibly a non-safety intruded into a feder-rationale, ally preempted area when it enacted Local Law 2-86....

Af ter an examination of the history of Local Law 2-86, the Court concludes that Local Law 2-86 i

does not proffer an economic rationale for its enact-ment. Nowhere in either Resolution 1255-1985 or the February 7 resolution of disapproval does the County speak of economic concerns. Instead, the legislation refers broadly to " police powers" that are exercised by the County in both natural and man-made emergencies. The County's stated con-cern is 4 hat LILCO, a private entity, will usurp the County's police power by " simulating" or "per-forming" County functions during the test of LlLCO's emergency plan. The County is on record, however, since Resolution 111-1983, as opposing the opening of the Shoreham facility on the grounds that no emergency evacuation plan is safe for Suffolk County. Indeed, the County's refusal to participate in the creation of a RERP was based on the County's independent determination that Shoreham was not safe. The County's attempt to stop the February 13 '

exercise on the grounds that LILCO will be usurping i

lhe County's Dolice Dowers is of a_plece with the County's 1983 determination that Shoreham should be abandoned as unsafe. Because the County p_assed l

Lo' cal Law 2-86 in an attempt to continue its oppost-tion to the Shoreham facility on the basis of a Der-ceived radiological hazard, this Court concludes that Suffolk County has impermissibly intruded into a sDhere of authority reserved exclusively to the fed-eral government by Congress.

628 F. Supp. at 664-66.

In short, Intervenors' protestations about the nature of their actions pur-Suant to state-law police powers, even if proper as a matter of State law (itself a matter still on appeal), are simply not germane to the relevant issue: this Com-mission's exercise of its supervening federal responsibilities.

Intervenors make similarly broad gauged, feckless arguments on the sub-ject of the adequacy of LILCO's' emergency plan and organization. Their princi-pal arguments, however, boll down to the assertion that, because they have man-aged so to contort the Commission's hearing process that nearly three and a half years af ter actual evidentiary hearing sessions began on emergency planning is-sues at ShorehamEI the Commission has still not reached a final decision, there-fore the Commission may not rely on any of the accretion of information to date (see, eA, Response at 28). This is plainly wrong.

M/ Intervenors also cynically suggest (see, gL. Response at 26) that the length of the emergency planning hearings to date reflects the extent of insufficiencies of LILCO's emergency plan for Shoreham. They know, as does everyone else who has witnessed these proceedings, that the proceedings' dura-tion has far more to do with the inevitable consequences of well-funded liti-glousness than with the merits of any factualissues.

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Intervenors may be unhappy (see Response at 30) about the conclusion of the Licensing Board in LBP-85-31, 22 N.R.C. 410, 427 (1985), that there is noth- l ing about circumstances unique to Shoreham that renders emergency planning inherently infeasible there. But their assertion that the Board's finding is

" unfounded dictum" is dead wrong. The Licensing Board presided over a meticu-

! lous, marathon decisional process that culminated, af ter nearly 90 sessions of ev-identiary hearings, thousands of pages of prefiled testimony and tens of thou-j sands of pages of transcript covering every issue Intervenors could imagine, in a j two-part initial decision somo 325 reported pages in length. LBP-85-12, i

I 21 N.R.C. 644 (1985), LBP-85-31, 22 N.R.C. 410 (1985). That two part decision resulted in resounding victories for LILCO, and defeats for Intervenors, on the literally hundreds of Intervenortraised issues involving the basic feasibility of emergency planning for Shoreham and the basic adequacy of the Shoreham plan to account for underlying circumstances. The conclusion cited by LILCO and criticized in Intervenors' Response is nothing more than a synopsis, or aggregate l

l summary, of the Board's findings on all of the detailed issues discussed throughout its decision. Intervenors' labeling of this conclusion as " unfounded dictum," given this decisional background, is merely an attempt to avoid its devastating effect.

! Further, Intervenors' assertion that there are various emergency pre-4 paredness items still open at Shoreham (Response at 26-28) overlooks three dis-positive facts. First, to a large extent, the fact that any issues at all remain i

i open is primarily a reflection of Intervenors' manipulation of the NRC's process.

l Second, none of the issues go to the fundamental feasibility of emergency i

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planning for Shoreham: they all go, not to the question of whether circumstanc-es can be dealt with or whether resources exist, but to whether they are arbi-trarily being withheld. Finally, there is no gainsaying that each one of the enu-merated items would be readily remediable with even minimal governmental cooperation.E E. Intervenors Cannot Block Expeditious Review by Demanding to Redo the Analysis A thoroughly predictable litany running throughout Intervenors' Re-sponse is that expedition is impossible because it will take them at least one year to eighteen months to perform ths extensive . analysis described in the Minor /Sholly Affidavit at 13-23; It is predictable because it is just another in a long series of ploys by Intervenors to delay this proceeding and to litigate Shoreham to death.

The short answer to this ploy is that Commission and NRC review should not be blocked by transparent delaying tactics. Intervenors cannot obstruct ex-peditious review of LILCO's Request simply because they wish to redo the analy-sis from start to finish. They deliberately ignore the distinction between a rea-sonable opportunity to review and a chance to reperform the entire analysis.

They may arguably be entitled to the former, but certainly not the latter. To conclude otherwise is to give to nuclear plant opponents the power to extend H/ Indeed, communications with various of the organizations which have withheld their active cooperation from LILCO have made clear that their refusal to cooperate at present is based on the absence of governmental cooperation. In some cases (e.g., radio station WALK, school districts), this position has actually been expressed in correspondence.

~

indefinitely the a1 ready seemingly endless proceedings. Intervenors apparently believe they have a right to replace the NRC Staff in its review and approval responsibilities. This is plainly not appropriate.

It is axiomatic in engineering that a review of an analysis need not in-volve the reperformance of the anlaysis. Competent and thorough review typi-cally samples only important and significant details. Moreover (and very important in this context), reviewers must be competent. Reviewers who are competent and experienced know what is potentially significant in an analysis and further know how to conduct an expeditious review designed to ascertain whether the analysis is substantively flawed in any way.

On the issue of InterveIlors' review, it is worth recalling that Suffolk County, in 1982, undertook to review LILCO's then-existing PRA, containment phenomenology and consequence analysis. The County retained Dr. Robert J.

Budnitz to review the PRA and containment event trees portion of the work.

LILCO took his deposition in August,1982. In the course of that deposition, Dr.

Budnitz, a widely recognized expert in the field and a former Director of the NRC Office of Nuclear Regulatory Research, noted that a competent review re-quired pursuing certain, tmt not all, items in detail. From the results of this ef-fort, inferences could be drawn as to the overall nature of the work. He said:

Q That's a case where the SAI would be too conserva-tive then?

A Yes, sir. It's not a big deal here. Tellurium doesn't dominate the dose in too much of this, but it's some-thing to try to pin down because, you see, in the course of pinning this down, a reviewer like myself attains or attempts to obtain confidence in the other things they've done.

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You know, you pursue some technical issues right to the bottom, and you ask what they finally did, and you learn to respect them if what they did was tech-nically defensible or suspect them if it isn't, and then you achieve through some specific things a more general feeling of the quality of the effort. .

So cally it'sthe notonly onlything a typical you review can dofp/rocess; it's practi-Beyond this, it is most interesting and relevant to note that Dr. Budnitz (

had already completed an apparently expeditious preliminary review E and his tentative conclusions, which he said he was willing "to stand behind," were that the work was " technically good," "better than good . . . at the state of the __

art."W Dr. Budnitz's labelling of the a'nalysts involved - "as competent as the E M/ Deposition of Robert J. Budnitz, August 17,1982, at 67. Dr. Budnitz also described his review in the following terms:

What we did was read the report, read it carefully, critically, and when we found a discussion that we thought was worthy of special attention in the re-view, we went at that, and we attempted to be selec-tive in the way experts do. You know, I would read a section and say, gee, that doesn't sit right with me. It doesn't look like the sort of thing that happened at Peachbottom or something, and so I'd dig in and find I out that their analysis was . . . .

Id2 at 47-48.

2_0/ While it is not possible to ascertain precisely how long Dr. Budnitz had taken to reach tentative conclusions, it appears from the deposition that his contract had been let sometime in June with the deposition taken on August 17 and a final date for completion of all his work on September 15. See Deposition of Robert J. Budnitz, August 17,1982, at 33-34, 47-53,160.

21/ Deposition of Robert J. Budnitz, August 17,1982, at 52-53; Dr. Budnitz testified as follows:

Q You indicated, Dr. Budnitz, that you had reviewed -

(footnote continued)

best in the business" - is significant since those analysts were also involved in the analysis that led to LILCO's 25% Power Request.

(footnote continued) read critically the PRA for Shoreham.

A Yeah, but it's too long to do. You know, it's not some-thing you -

Q Right.

A It's not something you read each page of, and it's not i something that we attempted to - to review thor-( oughly item by item.

Q On the basis of what yotfve done, haye you formed any opinion or expressed any opinion to anyone con-cerning the thoroughness of it?

A Yes.

Q All right. What is that?

l A We are impressed by its thoroughness and quality, l generally. We believe that it is a report that was at

the state of the art. That is, these analysts are as competent as the best in the business. It's hard to say

. whether they're better than the other three or four teams that carry out such work, but they're certainly

at that level.

That opinion is preliminary but is unlikely to change even if we find in the end some differences, large or

.; small, with details. That's a preliminary opinion that I'm willing to state and stand behind as opposed to, for example, if you asked me what is my preliminary j view of the internal flooding question.

I'll say, " Wait a minute. I'm still wrestling with that one; okay?" But I would be capable of stating now and believing that it won't change in the end; that we believe that the analysis is technically good. In fact.

better than good. I_t's - I said it's at the state of the i M.

1 Dr. Budnitz complimented LILCO's analysis in other portions of the deposition as I well. Deposition of Robert J. Budnitz, August 17,1982, at 62 (" good credible piece of work"), 82 (" good job"), 86-87 (" nice work") and 89 (" good job").

(footnote continued) '

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Suffolk County never produced Dr. Budnitz as a hearing witness and in-deed apparently never asked him to complete his work for no report was ever produced to LILCO. Still, Dr. Budnitz's deposition reflects first that Intervenors have access to expert consultants who are familiar with the original Shoreham PRA which is the basis for the PRA work underlying LILCO's 25% Power Re-l quest. It also reflects that those consultants performed an expeditious review i sufficient to conclude that the work was "better than good," state of the art" and performed by "best in the business" analysts - the same analysts who are respon- ,

sible for most of the work underlying LILCO's 25% Power Request. There is, j therefore, no justification whatever for Intervenors' claim that they require 1-11 i

years to review LILCO's 25% Power Request. Indeed, Intervenors' review should I be even more expeditious hue than in the case of review of a wholly unfamiliar

] PRA and plant. Nor should expert shopping by Intervenors be cause for delay.

l l In summary, there is no basis for delaying review and disposition of i

! LILCO's Request to give Intervenors the time they claim necessary to redo the analysis. At most, they are entitled to review the work in the same time frame i

the Staff requires.EI This is easily accomplished if Intervenors' reviewers are i

e-

! M/ Deposition of Robert J. Budnitz, August 17,1982, at 53. Among the ana-

, lysts involved in the 1982 work who are also responsible for a substantial portion

! of the work underlying LILCO's Request are Z. Mendoza of SAI, E. Burns, for-l merly of SAI and now with Delian, T. Potter, Pickard, Lowe & Garrick, and V.

Joksimovich, NUS Corp. It is also pertinent to note that Dr. Budnitz recognized

!. one of LILCO's peer reviewers, Dr. Walton Rodger, as " extremely eminent and l widely respected." Deposition of Robert J. Budnitz, August 17,1982, at 70.

D/ The underlying contractors' reports were provided to the Intervenors last I week. In any event, the matters mentioned in the Minor /Sholly Affidavit were addressed in the Request's Appendices supplied to Intervenors in April.

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competent and experienced.W III. CONCLUSION For the reasons stated here and in the 25% Power Request, LILCO re-spectfully urges the Commission to review and grant the 25% Power Request on an expedited basis.

Respectfully submitted, 4

LONG ISLAND LIGHTING COMPANY

' ' M / (/ ~

f. "

W. Taylor Reveley, III Donald P. Irwin Hunton & Williams Post Office Box 1535 Richmond, VA 23219 Anthony F. Earley, Jr.

Long Island Lighting Company 175 East Old Country Road Hicksville, New York 11801 i

DATED: May 12,1987 2_4/ In this connection, it is worth recalling that Intervenors are not small, impecunlous citizens groups. They include the second most populous state in the nation and one of the nation's largest counties. Together these entitites have al-ready spent more than $15 million in litigation opposing Shoreham. Surely they can be expected to retain competent analysts capable of performing expeditious review.

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