ML20041F660
| ML20041F660 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/15/1982 |
| From: | Brenner L, Carpenter J, Shon F Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-CPA, ISSUANCES-OL, NUDOCS 8203170276 | |
| Download: ML20041F660 (31) | |
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cou r Ti UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION ATOMIC SAFETY AND LICENSING BOARD
'82 M M EM d Before Administrative Judges:
Lawrence Brenner, Chairman r;
Dr. James H. Carpenter
(?
0 ' ; cy --
Mr. Frederick J. Shon
' * " ~ ~
SERVEu MAR 161982
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In the fiatter ot
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-0L
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(Shoreham Nuclear Power Station
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50-322-CPA E
Unit 1)
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March 15, 1 *\\
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g WCQD
-3
%gN MEMORANDUM AND ORDER 2
CONFIRMING RULINGS MADE AT THE CONFERENCE 4
0F PARTIES (REGARDING REMAINING OBJECTIONS C TO ADMISSIBILITY OF CONTENTIONS AND C
I**
ESTABLISHMENT OF HEARING SCHEDULE)
QCN p
N' O
Tnis oraer confirms the Board's rulings made at the Conference of Parties held on March 9 and 10, 1982, with respect to the Shoreham operating license proceeding.
Our ruling at the conference denying the request of the Shoreham Opponents Coalition (SOC) for a hearing on the Construction Permit extension amendment will be confirmed in a separate order.
In some instances, the reasons in support of our rulings are set forth more fully in this order than in the record. Due to the desirability of issuing this order '
promptly, there may be certain filings which the parties were directed to make which are not confirmed in this order.
In such instances, the record directives cont'.nue to have full force and effect, cy
.3 It 8203170276 820315 PDR ADOCK 05000322 o
y
. TMI Issues Allegedly Unresolved for Shoreham (SOC Contentions 7B(1)-(4) and SC Contentions 6, 7, 29 and 30)
Each of these four SOC contentions are either identical or similar to tne four Suffolk County (SC) contentions, and each pair may be summarized together as follows:
50C 7B(1) and (SC 29) - IREP-Probabilistic Risk Assessment:
By these contentions, intervenors contend that the need for plant specific safety improvements at Shoreham to prevent and mitigate accidents beyond those previously considered by the old review, which excluded so-called " Class-9" accidents as beyond the " design basis accident" review, must be analyzed by LILCO and the NRC Staff.
The contention further alleges that the analysis needed is the approach of the Interim Reliability Evaluation Program (IREP),1I wnich applies probabilistic risk assessment (including event-tree and fault tree logic) to a plant specific system to assess the reliability of systems which prevent or mitigate accidents and thereby to identify risk-dominant sequences, design weaknesses, and system modifications that could be made to improve the performance of the systems under various transient and LOCA events.2/
i 1/ e IREP Program is discussed as item II.C.1 of hUREG-0660 ("NRC Plan Th Developed as a Result of the TMI-2 Accident").
2_/SC 29 only consists of the last paragraph of SOC 78(1). That paragraph may be viewed as a sumary of the action requested by the entire contention -- the performance of an IREP analysis or what is termed a
" simplified system reliability analysis." This paragraph and therefore SC 29, do not expressly discuss the need to consider accidents formerly placed in that unconsidered residuum known as " class 9 accidents."
douever, an important part of trie underlying rationale in favor of such a systems reliability analysis is to attempt to identify whether there is a sufficient risk of such sequences.for a plant so as to require changes (e.g., in design, training, or operations).
. SOC 7B(2) and SC 7 - Systems Interaction:
Wnile not identical,-botn contentions, in effect, allege that a systems interaction analysis of the Shorenam design must be performed to assure that all interactions of control and non-safety systems with safety systems llave been considered when such interactions could cause or exacerbate an accident.
SC 7 adds the allegation that pnysical inspection of separations between power and control cables is necessary to assess potential systems interactions detrimental to safety. 50C 7B(2) notes that systems interaction has been the subject of unresolved safety issue (USI) A-17 under NUREG-0606 " Unresolved Safety Issues Summary" ( Aqua Book), as well as item II.C.3 of NUREG-0660.3/
SOC 7B(3) and SC 30 - Documentation of Deviations:
These identical contentions allege that neither the FSAR nor SER document and justify all deviations f rom current regulatory practices (i.e., Regulatory Guides, Branch Technical Positions, and Standard Review Plans).
SOC 78(4) and SC 6 - Classification and Qualification of Safety Equipment:
Altnough not identical, in effect both contentions allege that in the absence of a systematic event tree /f ault tree accident sequence analysis for 3/ This item, like IREP, is included within the overall item II.C category of Reliability Engineering and Risk Assessment. As noted in item
'II.C.3, the approach to systems interaction described there overlaps with IREP. As may be inferred from discussion of item II.C.3 in NUREG-0660, and as stated in NOREG-0606, Vol. 3, No. 3, at 26, the work originally planned under USI A-17 will now be performed under item II.C.3 of i.U<iG-0560.
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' Shoreham there is no assurance that all equipment "important to safety" as used in GDC 1 has been properly classified and qualified (incluaing being subjected to the quality Assurance Standards of 10 CFR Part 50, Appendix 8).
SOC 7B(4) cites item I.F.1 and II.F.5 of flVREG-0660. / SC 6 adds that tne proper analysis would include a review of Shoreham's Emergency Operating Procedures to insure that all equipment relied upon in the procedures is properly classified and qualified.
Discussion 1
LILC0 and the NRC Staff argue that none of the above contentions may be admitted because they are barred by the Commission's guidance on the extent to which issues arising out of the lessons learned from the Three Mile Island, Unit 2 accident ("THI Issues") may be litigated in individual operating license proceedings. We disagree.
LILC0 and the Staff are correct that the Commission approved the WOREG-0737 list of TMI requirements for application to new operating licenses, and that tnis list was culled from the larger list of TMI lessons A/ s noted in NUREG-0660 at I.F.1, this item involves applying the A
results of the IREP and systems interaction tasks to develop guidance to expand and rank the equipment included on QA lists.
Item II.F.5 is a program to develop a generic standard classification of instrumentation, control and electrical equipment based on the level of their importance to safety.
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. learned which had evolved into the TMI task action plans published as NUREG-0660.5/ However, they are clearly incorrect in their position that if a TM1 related item is not included in NUREG-0737, it may not be ataitted for that reason alone.I Such a view would lead to odd results, is inconsistent with the Comission's rationale, and clearly is inconsistent with the Comission's express additional guidance on this point in Pacific Gas and Electric Company (Diablo Canyon, Units 1 and 2),
CLI-81-5,13 iRC 361, 363 (1981).
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5I[ Revised)StatementofPolicy:
Further Commission Guidance for Power Reactor Operating Licenses, CLI-80-42, 12 NRC 654 (December 18,1980)
(" Revised Statement of Policy"). This revised statement superseded the earlier Statement of Policy of June 16, 1980 (45 Fed. Reg. 41738, June 20, 1980).
SITne Commission has published a proposed rule for comment which, if adopted, would make the substance of NUREG-0737 items part of the regulations (proposed new paragraph (f) to s 50.34) for operating license applications.
46 Fed. Reg. 26491 (May 13,1981).
Since the Revised Statement of Policy has not been modified by the proposed rule, and that policy makes these items applicable to Shoreham, there would appear to be no difference created by the pendency or even adoption of the rule, at least in the absence of a challenge by LILC0 to the necessity of a NUREG-0737 item.
It may be that adoption of the rule could affect the present right of an intervenor, under the revised policy statement, to challenge the sufficiency of a ftVREG-0737 item, depending on whetner the particular circumstances involved would lead to the contention being viewed as a "cnallenge" to the new section 50.34(f) of the regulations.
However that is not pertinent to our ruling on these contentions which do not raise matters in NUREG-0737.
In any event, we need not decide the point with respect to Shoreham contentions unless and until the regulation is adopted and the revised Statement policy is superseded by it.
. We need not undertake a detailed analysis of the wording of the Revised I
Statement of Policy, which in our (unnecessary) view is wnolly consistent with the Comaission's further guidance in Diablo Canyon, supra, oecause the Commission has squarely addressed tnis point, as follows:
Parties are generally free to raise issues of compliance with NRC regulations, subject to 10 CFR 2.714 specificity and lateness requirements, where applicable, and standards for reopening records, where applicable.
This holds true for TMI-related issues, and nothing in the Revised Policy Statement affects this.
Tnus, if a party comes forward on a timely basis with significant new TMI related evidence indicating that an NRC safety regulation would be violated by plant operation, we believe that the record should be reopened notwithstanding th p the noncompliance item is not discussed in NUREG-0737..
Diablo Canyon, supra, at 363.
We have eschewed a detailed analysis of the Revised Statement of Policy as unnecessary in this instance in view of tne opportunity to rely on tne Commission's clear statement quoted above. However, it might' oe helpful to note why the position that a TMI related requirement may be litigated only if it is in NUREG-0737 misapprehends the rationale and meaning of the Hevised (and indeed the original) Statement of Policy.
Prior to the TM1 policy statement, there were reconnendations made in various documents of
- lessons learned from the TMI accident.
Some of these recommendations could
[The last sentence of the quoted excerpt discusses a permissible allegation that an NRC regulation would be violated in terms of "significant" evidence only because, as is clear from the rest of the sentence, the posture in Diablo Canyon was one of deciding whether a closed record should be reopened.
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. ce implemented by interpretation, refinement or quantification of existing regulations -- i.e., improved recognition of actions necessary to meet existing regulations.
Such issues addressing TMI related recommendations in ter.ns of deciding whetner existing regulations are met could of course always be litigated, from either direction (sufficiency or necessity of the requirements). Neither the original nor revised policy statement cnanged this.
Another category of TMI related recommendations could only be implemented by going beyond the requirements of the existing regulations because compliance witn the existing regulations would not solve the problem disclosed by the particular lesson learned from TMI.
The Commission recognized this category well before its original policy statement in its cautionary instruction that:
In reacning their decisions tne Boards should interpret existing regulations and regulatory policies with due consideration to the implications for those regulations and policies of the Three Mile Island accident.
In this regard it should be understood that as a result of analyses still underway tne Commission may change its present regulations and regulatory policies in important respects and thus compliance with existing regulations may turn out to no longer warrant approval of a license application.
Suspension of 10 CFR 2.764 and ' Statement of Policy on Conduct of Adjudicatory Proceedings, (Novenber 5,1979)(44 Fed. Reg. 65049, at 65050, November 9,1979), republished as Appendix B to 10 CFR Part 2.
' The second sentence is no longer the part of the regulations.
Presu,nably, at least in part, this is because the general caution that in light of the THI accident compliance with existing regulations may no longer ne sufficient has been superseded by the guidance of the Statement of Policy tnat requirements in NUKEG-0737 are to be met even if they impose new requirements beyond the existing regulations.5/
Under the policy statement, then, the Shoreham operating license application is to be measured by the NRC Staff, and as to contested issues by tnis Board, against the regulations as augmented by the requirements of NUREG-0737. Revised Statement of Policy, 5 NRC at 659.E/
$/ e effect of this was similar to amending the regulations to include Th those NUREG-0737 items which would ctherwise have been considered challenges to the existing regulations.
Unlike regulations, however, without special Commission action. Applicants could challenge the necessity of a " supplemental" HUREG-0737 requirement, and under the revised policy s t ateacnt, intervenors could challenge the sufficiency of such a
" supplemental" requirement. The Comnission believes the nunber of
" supplementary", as distinguished from " interpretive", requirements in ivdREG-0737 to De quite small.
5 NRC at 655.
E/ omnissioner (then Chairman) Ahearne dissented frora the Revised C
Statement of Policy because he wanted the Connission to remain directly involved in deciding, through requests for certification on a case by case basis, wnether an intervenor should be allowed to litigate the sufficiency of not going beyond tne regulations (as augmented by the NUREG-0737 requirements).
5 HRC 662.
This disagreement aside, Commissioner Ahearne's dissent is in full agreement with the majority on the point before us.
He notes that a party should go througn the Licensing Board to request certification of TMI matters going beyond the existing regulations in part because "the Board mignt rule that the issue is within the existing regulations rendering certification unnecessary...." 5 NRC at b63, n.3.
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. Our inquiry then cannot end with a finding that an issue is not within NUREG-0737.EI We must decide if such an inssue is a r.hallenge to the presently existing regulations.
LILCO and the Staff also assert that the IREP and Systems Interactions contentions are ur.derlain by an insistence that so-called Class 9 accidents, beyond those previously considered for the design basis of the plant, be analyzed for Shoreham.
They argue that such litigation is barred Sy the Conmission's Statement of Interim Policy on consideration of Class 9 accidents under NEPA.EI This Commission statement revoked the old proposed 1971 Annex to 10 CFR Part 51 (originally to 10 CFR Part 50, Appendix D) under which it was not necessary to include the environmental risk of Class 9 accidents in NEPA evaluations.
The Comission's statement further included guidance for inclusion of the environmental evaluation of the risk (a combination of probability and consequences) of Class 9
$! e note further that such an approach would lead to the ausurd W
result of applying a policy statement that was issued to expand the scope i
of a proceeding to include NUREG-0737 requirements whether or not they were outside the regulations so as to limit a hearing to issues related solely to NUREG-0737 issues.
In some cases, including some of the four pairs of contentions before us, issues related to TMI also arose out of other matters predating TMI, e.g., unresolved safety issues. The Applicant's and Staff's position that NUREG-0737 contains the entire universe of TMI-related issues which may be litigated would result in now Darring such issues, even tnough the issues could have been litigated before the policy statement and to some extent (although not with the Denefit of the new lessons learned) even before the TMI accident.
EI" Nuclear Power Plant Accident Considerations Under the National invironmental Policy Act of 1969," 45 Fed. Reg. 4010 (June 13, 1980).
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. accidents, but requires these new NEPA treatments only for proceedings in wnich a Final Environmental Statement (FES) has not issued as of the time of the interim policy statement -- June 13, 1980.
The Shoreham FES was issued long before this date, in October 1977.
it is clear under the policy statement that an environmental assessment of the risk of Class 9 accidents need not be performed for Shoreham.
It is also clear that IREP probabilistic risk analysis is not required for Shoreham in the sense that failure to do one is not per se insufficient under the regulations. However, we see no bar to contentions such as those advanced here which allege that the previously applied methodology is inadequate for determining whether the design of tne plant adequately protects from accident sequences which should be considered.
In the first instance, the contentions objected to as a challenge to the Commission's policy on treatment of Class 9 accidents are not solely di, 'ted to Class 9 accidents. We agree that an important part of the underlying thrust is the assertion that accident sequences beyond those previously considered for Shoreham may have to be considered and that this cannot be determined properly under the present allegedly inadequate analysis. However, even if we held that contentions seeking a systematic design analysis must draw the line at consideration of accidents beyond those previously considered design basis, the contentions could be admitted as so limited.
, More importantly, however, we do not read the Class 9 policy statement to bar the contentions.
The allegations, as we construe them, are not that a full probabilistic assessment of environmental risk of Class 9 accidents
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. (i.e., an envelope or range of risk of radiological doses and consequences) mustbeperformed.EI The contentions allege that under the design approach applied to Shoreham, there is no assurance that the plant systems design provides the protection from accident sequences required by applicable regulations, including the specified GDC in Appendix A to 10 CFR Part 50, will be met.
Even the now revoked Annex provided for flexibility to snow that accident assumptions other than those in the Annex "may be more suitable for individual cases."E As basis, the contentions point to
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different techniques of systems analysis which in intervenor's view would provide a proper methodology, which are not being applied.
In addition, tne contentions note that potential systems interaction is an acknowledged consideration, partly because of TMI and partly because it an unresolved safety issue, which must be taken into account as part of the systems anslysis which allegedly should be performed. We note also that, as is obvious from our sunmary of the safety classification contention, it too is a part of the analysis which intervenors believe has been lacking.
EIAt the Conference of Parties, it appeared that SOC was now asking for this NEPA analysis also, in addition to an analysis more directly applied to assessing the cystems design of the plant.
If so, to this extent the contentions are barred by the Commission's implementation schedule for such a NEPA analysis in its Class 9 policy statement.
EIA full discussion of the historical treatment of Class 9 accidents may be found in Metropolitan Edison Company (Three Mile Island, Unit 1),
LBP-79-34, 10 NE 826, 832-35 (1979).
. We do believe that the contentions are too vague to put the parties or tne Board on notice of which plant systems are inadequate and will fail to protect as designed due to reliance on improperly classified or qualified equipment, or due to failure to consider particular systems interactions.
While there is sufficient basis to permit inquiries into LILCO's and the 1
Staff's methodology of safety systems analysis, tnere is not at this time the basis for commencing, on the record of this proceeding, a system by system analysis or pnysical inspection 4/ on the mere possibility that I
a defect may turn up during consideration of the assumed failure modes and protective systems operations.
However, tne contention pairs of SOC 7B(1) - SC 29, S0C 7B(2) - SC 7, and SOC 7B(4) - SC 6 may be combined as a contention going to the methodology or lack thereof used by LILCO and the Staff along the lines of 4
our previous description, restated as follows:
LILC0 and the Staff have not applied an adequate methodology to Shoreham to analyze the reliability of systems, taking into account systems interactions and the classification and qualification of systems important to safety, to determine which sequences of accidents should be considered within the design basis of the plant, and if so, whether the design basis of the plant in fact adequately protects against every such sequence.
In particular, proper systematic methodology such as the fault tree and event tree logic approach of the IREP program or a systematic failure modes and effect analysis has not been applied to Snoreham.
Absent such a methodological approach to defining the importance to safety of each piece of equipment, it is not possible to identify the items to which General Design Criteria 1, 2, 3, 4, 10, 13, 21, 22, 23, 24, 29, 35, 37 apply, and tnus it is not possible to demonstrate compliance with tnese criteria.
b SC 7 in part alleges, again without specification as to particular systems, tnat electrical separations must be inspected as part of the needed systems analysis.
Ad:nitted contentions SOC 19(g) and SC 31 will involve litigation of physical independence of electrical cables and race ways.
. As stated, this contention shall be S0C and SC 78, replacing the three pairs of contentions noteo.
Sucn a contention, wnich we find fairly restates tne contentions, would be a general inquiry into the methodology used by LILCO and tne Staff to determine whetner there is reasonable assurance that the Shoreham design adequately protects from credible accidents.
The mere listing of all the key plant systems, in the last paragraph of 7B(1) and in'SC 29, taken from generic documents, does not provide a basis for requiring detailed testimony from LILC0 and the Staff analyzing or inspecting all the systems.
Si.nilarly, the assertion in SC 6 that the turbine control system causes transients and therefore should be in a safety classification so as to be subject to QA requirements does not provide a basis for testimony from LILC0 or the Staff analyzing whether tne turDine control systems should be reclassified.
Although we have viewed the contentions as going to the general metnodology (if viewed as asking for a substantive system by system analysis or inspection they would have been too vague ar.d without adequate basis), a problem arises in that one useful way to test the methodology would be an examination of its application to a particular system. Accordingly, if intervenors wish to use this approach as part of their evidence, they must, in their direct combined presentation of testimony, discuss a maximum of three examples of plant design which in their view illustrate the inadequacy of tne methodology as alleged in the restated contention.
Intervenors' testimony shall be filed on the April 13 testi.nony date, and will be
. _ = _.
,. the first testimony presented in the evidentiary hearing. LILC0 and the NRC Staff need not file any direct testimony (which will include rebuttal testimony) until after intervenors' testimony is presented.
LILC0 and the Staff will be required, regardless of intervenors' testimony, to address the t
restated contentions by explaining their methodology and why they believe it is adequate.
In addition, any specific design examples raised by intervenors' testimony will ne addressed in the testimony of LILC0 and the Staff.
If, after considering the proposed findings of the parties (or perhaps earlier) the Board finds that the testimony, including any of intervenors' examples, raises doubts about the methodology applied by LILC0 and the Staff, this could require LILCO and the Staff to go forward with an expanded system by system analysis on the record of this proceeding.
SOC Contention 7B(3) - SC 30 (regarding documentation of deviations) may be viewed separately from the other three pairs of contentions. We find it inadmissible as being too vague.
This is consistent with our previous rulingonS0C19.3E/
Intervenors must point to particular deviations waich they believe have not been justified.
Otnerwise, there is no notice of what would be litigated, and no ability by us to examine the basis for the particular factual contentions.
If viewed merely as a legal contention that such a listing of deviations is required, we find thet it is r.ot.
Although it may be convenient to have such a uniform listing for all INurder Ruling on Petition of Snoreham Opponents Coalition, at pp.
22-23 (unpuDlished) (Marcn 5,19du).
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. facility applications, and it may be required foi future applications under a proposed rulemaking, 4b Fed. Reg. 67099 (October 10,1980), it is not now required.
Unlike the other three pairs of contentions, the absence of doing what is asked for by the contention presents no basis to contend that therefnre the regulations will not be met.
Contention SC-16 ATWS:35/
Tne Contention states:
Suffolk County contends that LILCO and the NRC Staff have not adequately demonstrated that Shoreham meets the requirements of 10 CFR 50, Appendix A, GDC 20, regarding correction of the anticipated transients without scram (ATWS) problem.
As further amplified in the County's response, it contends that because the Shoreham standby liquid control system ("SLCS") is not automatically initiated, is not totally redundant'and does not meet the single failure criterion,theplantdesigndoesnotmeetGDC20.32/
As clarified, the contention is specific in alleging a current safety requirement is not met. Applicant objects that we may not consider the contention because there is a generic rulemaking proceeding on ATWS before the Commission.
Indeed, we note that one of the options being considered by
$5/This contention was discussed at Tr. 218-238 and admitted as clarified at Tr. 495-97.
12/GDC 20 states:
Protection system functions.
The protection system shall De designed (1) to initiate automatically the operation of appropriate syste.ns including tne reactivity contral systeas, to assure tnat specified acceptable fuel design limits are not exceeded as a result of anticipated operational occurrences and (2) to sense accident conditions and to initiate the operation of systems and components important to safety.
tne rulemaking is whether to require autenatic initiation of the SLSC for soiling Water Reactors (BWRs),
tie agree with Applicant's application of the Douglas Point and Rancho Seco cases only to a limited extent.
Where a generic matter is in rulemaking and will have little if any effect in the interim on the licensing of the individual plant, then there is no harm in issuing a license even if the rulemaking is not resolved.
However, where a generic issue has a direct bearing on the safe operation of the individual plant and the ability of that plant to meet present regulations, the issue cannot be put aside for resolution af ter the issuance of the license simply because it is the subject of an uncompleted generic rulemaking proceeding.
To do so would permit blanket exemptions from,the regulation without underlying supporting findings for all plants whicn could fortuitously be licensed while a rulemaking proceeding is pending.
However, an individual Licensing Board must have a sensitive regard, consistent with the regulations, for the relationship of the rulemaking proceeding to the i.dividual proceeding.
Therefore, it may often be prudent to defer consideration of an issue so long as it appears that the rulemaking may be completed before the individual-plant licensing design will be reached.
That is not the case here. We expect to' complete the hearing this 1$/ otomac Electric Power Co. (Douglas Point, Units 1 and 2), ALAB-218, P
o ndC 79, 03-86 (lvT~).
Sacramento Municipal Utility District (Rancno Seco), ALA8-655, -14 iiRC 799, d16-17 (1961).
O year.
Tne Commission 7redicted a two to four year period from November 1981 to " implement" a new ATWS rule.
We celieve tne correct legal approach, and also best practical approach in the context of tnis case, is to approach a generic issue involved in rulema<ing which would affect tne licensing of a plant in a manner similar to treatment of an unresnived safety issue under the River Bend and North AnnaAppealBoarddecisions.EI ATWS is in any event on' the list of Category A unresolved safety issues, but we believe the same approach would be valid even if it was not.
As set forth in an unpublished order issued by the Licensing Board in tne Tnree Mile Island, Unit 1 restart proceeding:EI However, tne fact tnat an issue relevent to an individual proceeding will oe resolved in a generic rulemaking proceeding does not perforce permit the individual proceeding to conclude as if the generic issues does not exist.
The board would either have to defer any authorization otherwise justified in the individual case until a determination is reached in the rulemaking proceeding and then factor tnat determination in, or ce able to conclude that such autnorization can be granted in the individual case in advance of resolution of the issues on a generic basis.
Tnis latter Jetermination could be premised on findings that the problem has been resolved for the individual reactor, or that there is reasonaole assurance the problem will be resolved before it has adverse safety implications for the indivioual reactor, or that alternative means will be available for assuring that lack of resolution of tne problem generically would not pose an undue risk from operation of the individual reactor.
Cf. Gulf States Utilities Co. (River Bend, Units 1 and 2), ALAB-T4T, 6 NRC 760, 776 (1977).
$ 6Jlf States Utility Co. (River Bend, Units 1 and 2), ALAB-444, 6 NRC
/ou, /76 (1977).
Virginia Electric and Power Co. (North Anna, Units 1 and 2), ALAB-491, 8 NRC 245 (1978).
EIHetropolitan Edison Co. (Three Mile Island, Unit 1), Docket No.
50-289 (restart), slip op. at p. 4 (March 12,1981).
O Under such an approach, we may permit litigation before us of whether it is acceptable under presently applicable safety requirements to authorize b efore the ATWS problem Shorenam to operate in tne estimated period b
will be resolved by completion of the rulemaking.
In terms of the SLCS, the question will oc whether the plant design and operator actions in place pending completion of the rulemaking will compensate for the 1ack of automatic initiation of the SLCS in terms of providing the level of protection required by GDC 20.
Where operator actions are relied on by LILCO in the interim, it will be material to the contentions to examide the time available to take the action, and the procedures and training (technical and attitude) for assuring the action will be implemented when necessary.
There may of course be cases where the Commission has made the finding that it is acceptable for an individual license to issue while a rulemaking is pending.
Indeed, on the particular hydrogen control question involved in Rancho Seco the Commission had made such a determination in the Three Mile Island restart proceeding,EI although we see no explicit recognition of this by the Rancho Seco Appeal Board in its decision. 5 NRC 799, 816-17.
EI One to three years from the fall of 1982.
$/ etropolitan Edison Co. (Three Mile Island, Unit 1), CLI-80-16,11 M
NRC 674 (1980).
See also the THI-l Licensing Board's order of March 12, 1981, supra, at pp. 4-5.
Tnis Coranission determination was also recognizea and applied in this proceeding.
See Order (un'publisned) of Appea! Panel Chairnan, dated May 2d,1980, and this Board's Order Aomitting SOC Contention 12-3rd Subpart, dated July 2, 1980.
. In the ATWS notice of proposed rulemaking, the Commission records its belief tnat the likelihood of severe consequences arising from an ATWS event is acceptably small in the interim based on a number of factors. One of tnese is "tne initial steps taken to develop procedures and train operators." This is necessarily plant specific, and will be the subject of the litigation on ATWS in Snoreham. Manifestly, the Commission's notice cannot be taken to have made this important finding for us for Shoreham.
We nave considered the Perry Licensing Board decision cited by the parties.23! Our result is similar, albeit on the basis of the reasons we have recited.
To the extent Perry ooes not make clear that its inquiry may be restricted to the interim period before a rule is adopted, we have so specified in the circumstances of t,he Shoreham proceeding before us.
In accordance with the above discussion, we admit SC 16 on ATWS, restated as follows:
Although the anticipated transients without scram issue is generically before the Commission in a rulemaking proceeding, Suffolk County contends that LILC0 and the NRC Staff have not adequately demonstrated that Shoreham meets the requirements of 10 CFR Part 50, Appendix A, GDC 20, regarding correction of the ATWS proolem in the interim period of several years pending completion and implementation of the result of the rulemaking for Shoreham.
This is because the interim measures to be taken at Shoreham, including operational procedures and operator training, will not compensate for the lack of an automatically initiated and totally redundant standby liquid control system (SLCS) which meets the single failure criterion.
I2/ evelanc Electric 111uminating Co. (Perry, Units 1 and 2), LBP Cl
_, (January 6, 19d2).
O Remaining Suffolk County Contentions Not Previously Ruled Upon (SC 12, 13, 18, 20, 22, and new 32)
The following Suffolk County contentions were either objected to in uncle or in part prior to the conference of parties, or were presented for the first time in Suffolk County's filing of March 1,1982.
In the absence of objections, the new Suffolk County contention on electrical penetrations, now designated SC 32, was admitted as presented in
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the County's filing of March 1,1982, at page 37.
(Tr.296-298.) Althougn almost identical to the first paragraph of SC 32, due to minor differences which will probably prove to be without any distinction, SOC 19(f) will remain admitted.
(Tr. 477-80. )
Af ter discussion on the first day of the conference, it became apparent that the parties had suggestions which could lead to resolution of the disputes on the other County contentions noted above. Accordingly, the parties were asked to confer that evening. With commendable cooperation and oovious hard work, the parties resolved their differences, and agreed to the admissibility of these contentions, as revised.
The County agreed to file formally the revised contentions.
In view of the agreement on SC-12, dealing with design and construction QA/QQ, which SOC will also be a party on, SOC has withdrawn its contention 6(a)(1) in lieu of responding to LILCO's motion for summary disposition of
~
tnat contention.
Tne withdrawl of 6(a)(i) is with prejudice, (except for
. the possibility of material new information which would be considered if the situation arises), to any intervenor relying on the particular alleged construction defects which were the subject of S0C 6(a)(i) for the basis of claining inadequate QA/QC with respect to the admitted contentions bearing on that subject.
The parties will consider whether revised SC-12 can be combined expressly in some fashion with SC-15.
(Tr.452-62.)
Contention 13a on QA/QC operations was agreed to as originally worded, except that the last phrase "and the guidance in all applicable regulatory guides will be satisifed" was deleted by agreement.
(Tr. 467-70.)
SC 18 regarding Human Factors Equipment was agreed upon, as revised, with SOC also a party on the contention.
SC 18(d) is revised as set forth in the County's filing of March 1, at page 17. The "for example" is deleted from SC 18(e), and three more control room items were added to the contention: range of the reactor water level display, strip chart recorders and reactor mode switch and key location.
SC 28(a)(ii) and S0C 7(A)(2) were deleted in lieu of revised SC 18.
(Tr.470-73.)
SC 20 (Human Factors - Simulator) was revised to focus on the interim period until LILC0 obtains a Shoreham specific simulator.
The County, if it has a contention on the adequacy of the planned permanent Shoreham simulator, will advance it by the time of the final prehearing conference scneauled for April 13, 1982.
(Tr. 473-76.)
. SC 22 (SRV Test Program) was agreed to, as modified in the County's filing of March 1, at page 20.
S0C will be a party on SC 22 as revised.
SC 28(a)(v) and 50C 7( A)(5) were deleted in lieu of SC-22.
(Tr. 293-95, 477.)
Security Plan The County and LILC0 are discussing matters relating to whetner the County will raise a security plan contention.
The County has been pursuing this possibility actively, including having its expert qualif'ied, and under a non-disclosure requirement, to review the plan and talk with LILC0 about it.
(Tr. 298-300. )
If the County wishes to advance a security plan contention, it will do so by April 2, 1982.
As part of that same filing, or by separate filings if necessary on the same day, tne positions of LILC0 and the Staff on any SC security plan contention sha11 be set forth.
If such filings are made, any necessary inclusion of protected information should of course be properly segregated and protected from disclosure to unauthorized persons.
OHILI/NSC Contention 7(i) on security planning was dismissed for failure to. pursue discovery and specify the contention in accordance with the Board's order of over four years ago (January 27, 1978, at page 23), (Tr. 300-305. )
1 Status of County As discussed (Tr. 305-314), the County does not lose its right to participate as an interested governmental agency pursuant to 10 CFR 9 2.715(c) because it has elected to participate as a full intervenor un specified contentions.
Project Management Corporation (Clinch River Breeder
1 f i
Reactor Plant), ALAB-354, 4 NRC 383, 392-93 (1976). However, it may not at this stage, less than two months befree the start of the hearing, raise new issues in the case not already embraced within the scope of admitted contentions. 1 Accordingly, if the County seeks to litigate new seismic issues as it has indicated it might, it will have to satisfy the balancing test applicaole to late contentions. Gulf States Utility Co. (River Bend, Units 1 and 2), ALAB-444, 6 NRC 760, 768-70 (1977).
l The Board also noted the potential for unfair suprise in this proceeding if the County files direct testimony on a contention of another intervenor wnich is not similar to the many contentions the County has chosen to submit.
J That is, because the County has many contentions in common with SOC, it may have been fairly assumed that the County would file no direct testimony on S0C contentions which it did not have in common.
For example, parties would not have been put on notice to pursue discovery 6f the County on S0C contentions which the County did not share.
If the problem arises, we will deal with it.
In tne meantime, the County is free to file direct testimony on any admitted contention.
SOC and Suffolk County (SC) are directed to coordinate their direct testimony on all contentions which they have in common (as defined by common 24/This does not apply to emergency planning issues, which are being l
scheduled separately, and the possible security issues discussed above, i
. subject matter) and on all of SOC's contentions which the County wishes to take a position on through the filing of direct testimony.
The coordination shall be, to the extent practicable, pursued in good f aith, witnout unduly burdening eitner 50C or SC, but also witnout unduly burdening the proceeding with duplicative testimony. Where practicable, 50C and SC are encouraged to co-sponsor joint written testimony, and snall where possible co-sponsor panel presentations of similar written testimonies.
Similarly, where their positions are similar, tne Staff and LILCO shall co-sponsor joint panel presentations of their written testimonies.
In view of the coordination we are now seeking, and our confidence that the parties will pursue this in good faith with the result of much more efficient hearing, the Board can be more flexible on the schedule for the filing of testimony than was indicated at the hearing. We discuss this below.
Emergency Plannii,3 ContentionsS5/
SOC Contentions 1 and 2, as framed by the filings of S0C in response to the motions for sunnary disposition by LILC0 and the Staff, and SOC's response to _the Board's Order of February 8,1982, and tne discussion at the conference (Tr. 346-385), were dismissed as a challenge to the Comnission's emergency planning regulations.
10 CFR s 50.47 and Appendix E to 10 CFR Part 50. Our reasons were outlined at the Conference.
(Tr. 388-92).
S5/ SOC Contention 12 (Part 2), regarding down connon supports was withdrawn (Tr. 325).
e 4
- We found that tne contentions as frar.:ed by the filings and argument were asking for a totally new probabilistic accidect risk and consequences analysis 4
to determine on a clean slate (as if the rule did not exist) what zones should be estaalished for the plume exposure pathway and ingestion pathway EPZ's.
The emergency planning rule was promulgated af ter these contentions were admitted.
If it were construed to permit such a case by case ad hoc analysis the 10 and 60 mile general specification for the respective EPZ's would be meaningless, notwithstanding the flexioility in the rule.
As indicated, the dismissal was without prejudice to the submission, on the schedule to be established for offsite emergency planning contention, of contentions that adjustments must be made to the approximate 10 and 50 mile Emergency Planning Zones due to particular local conditions within the flexioility permitted by the regulations.
In addition, our ruling does not preclude a contention that because of the geography of Long Island, evacuation planning within an approximate 10 mile EPZ may not be adequate because of the impacts of persons outside and to the east of the EPZ choosing to evacuate and having to do so by coming through the EPZ.
Tne Board indicated that whether or not contentions were filed on tnis issue, it would be pursued by the Board (Tr.
396-97).
The Board directed the parties present at the conference to file by March 29, 1982, their joint (or at least coordinated) advice as to whether the filings and litigation of on-site emergency planning contentions can be
l scheduled in advance of off-site emergency planning.
(Tr. 450-52.)
If the OHILI/NSC intervenor group wish to participate, it must contact the parties.NI t
The Board also directed the respective parties to file by March 29 the documentation in their possession, along wi.
whatever explanations or caveats they wish to make as to e.g.,
the incomplete draft nature of the material, its lack of usefulness or applicability for emergency planning issues, the fact that the further final documents will be forthcoming (and wnen), etc. Tne NRC Staff shall file its existing computer run of the CRAC code for Shoreham.
LILCO shall file its accident consequence study. Suffolk County shall file its draft emergency (including evacuation) plan.
(Tr. 397.)
In addition by March 29, tne County will file its schedule for completion of its emergency planning, including interim milestones if possible and a description of what remains to be done.
Tne Staff will provide a status and schedule for all other pertinent emergency plans and the FEMA review.
Counsel for New York State Energy Office and Public Service Commission will provide further detail with respect to the status of the State plan.
(Tr.
397-99.)EI EITne broad NSC/0 HILI contention 7(j) will be dismissed if it is not particularized on the schedule to be established for on-site and off-site emergency planning contentions.
(Tr. 400.)
$Although not tied to emergency planning, we confirm here that, also by
~
Marca 29, the Staff will file a status report detailing the schedule of the remaining Staff-review, focusing on matters related to contentions in the proceeding.
(Tr.
430-37.).
In addition, the Staff and LILC0 will each file by March 29 tneir estimates, or range of estimates, for the completion of construction of Shoreham, with explanation of the uncertainties.
(Tr.
449-50).
. Schedule The Board will hold a final prehearing conference pursuant to 10 CFR 9 2.752 on April 13, 1982, at approximately 10:00 AM.
The exact time and location in Suffolk County will be annonced.
Tne Board will visit the Shoreham site on the morning of April 14, nopefully as early as 8:30 AM, so as to conclude by 1:00 PM, if that can be arranged by LILCO.
Counsel for the parties are encouraged to attend.
The Board will hear limited appearance statements on the evening of April 13 and the afternoon and evening of April 14.
The exact time and location in Suffolk County will be announced.
Counsel for LILC0 and the Staff are require; to attend.
Counsel for the other parties are encouraged to attend.
The following schedules do not include emergency planning issues.
Completion of Discovery (Tr. 512-15)
The following schedules were established in the event the intercession of the Board is needed to resolve a discovery dispute.
However, the Board is pleased that the parties are continuing their productive discovery meeting which serve the purposes of efficiently providing the discovery sought and keeping misunderstandings and disputes requiring our resolution to a minimum.
All dates are received-by-5:00-PM dates (unless otherwise stated) by lead counsel for tne Staff, LILCO, Suffolk County and S0C and by the Board.
Others n
.. =.
. on tne service list shall be served by placing the filings in the first class mail on the same date.
Extensive discovery documents need not be included with the cover material to other than those enumerated in the first sentence.
For all contentions except SC-16 ( ATWS) and SC-20 (simulator): these discovery requests were due by the March 9 conference of parties.
If the response time in the regulations is less (due to earlier filing of the request), it shall be followed but considered as a receipt'-of-responses date rather than a mailing date.
March 15 (12:00 Noon): Objections-received March 18:
Motions to compel received
)
March 19:
Conference call Dy Board if necessary to rule March 26:
Responses to requests, received March 26:
Last date for taking of depositions (permitted on a minimum of five days from receipt of oral notice.
Written confirmation shall be filed rapidly).
For contentions SC-16 (ATWS) and SC-20 (Simulator);
April 2:
Requests received April 9 Objections received i
April 13:
Motions to compel (received at beginning of I
prehearing conference) to be ruled at prehearing i
conference April 23:
Responses to requests, received April 23:
Last date' for taking of depositions (permitted on a minimum of 10 days from receipt of written notice).
O 29 -
Testimony At the conference of parties, the Board directed that testimony on. all contentions, except SC-lo and SC-20 and Staff and LILC0 testimony on SC-78 be filed ny placement in the mail (or by more rapid means) by April 13, and that at least one copy for each of the parties and Board also be distributed at the April 13 prehearing conference.
In the first instance, the Board erred in not also excluding testimony on SC-1 (remote shutdown panel), SC-8 and 50C-19(h)
(environmental qualification), and SC-23 (contain.nent isolation). Since matters affecting these three issues are still under Staff review, and will no; be completed by the Staff until even af ter the still pending Supplement-2 of the SER, the Board intended to establish no schedule for the filing of testimony on these three issues, consistent with the discussion at Tr. 437-440.
However, preparation of testimony now should anticipate that the testimony will be required approximately one month from issuance of the NRC Staff's review.
That completion of the Staff review should be filed in the most expeditious written form by the Staff (i.e., an SER supplement, an advance portion of an SER supplement, or Staff testimony).
At the conference, the Board further required the receipt of testimony on SC-16 and SC-20 by May 25 (at the hearing which should then be in session).
Intervenor's direct testimony on 78 must be filed by April 13, as discussed in the ruling on this contention since it will be the first testimony presented at the hearing.
Tne first three weeks of the hearing have been scheduled for May 4-7, May 11-14, and May 25-28.
The Board has reconsidered its testimony filing
O 4 schedule.
We believe the initial schedule to be fair after the extensive amount of prehearing time to prepare testimony (at least five months and arguably years), even tnough tne filing time of mid-April was not set until our Feoruary 8, 1982 order.
However, to assure better high quality testimony which is fully coordinated as required above, and carefully honed to focus on that which is really significant and material to tne matters in controversy, we believe the schedule can be relaxed without delaying the hearing scnedule.
4 Tne parties shall file direct testimony on tne April 13 schedule on a sufficient number of contentions to assure four weeks of hearing time.
The parties shall reach agreement on this by jointly specifying the contentions on which testimony need not be filed by April 13.
Any disagreements shall be noted.
This specification must be received by the Board as soon as possible, and not later than March 22.
Testimony on all other contentions, except tnose tnree not scheduled due to the incomplete Staff review, shall be received by May 25.
Tne direct testimony shall have a brief cover outline setting forth its purposes and objectives.
This outline, which is in effect an advance very I
"Dare-bone" skeleton of tne proposed findings, will be bound into tne record with the testimony.
However, it is not part of the record and may not be cited l
in support of proposed findings. The testimony shall also contain a listing of I
all exhibits (or portions thereof) which will be moved into evidence as part of tne support for the testimony.
The exhibits (except for LILC0's and tne 5taff's main review documents) snall be served with the testimony, unless the
'exnibit also is being served with ot'her testimony being filed by the same or i
c-m
31 -
another party.
professional qualifications of the witnesses shall be filed with the testimony.
Where there are multiple witnesses, the testimony shall specify which witness prepared each part within the combined testimony, unless it is impossible to do so.
Such inseparable parts of the testimony shall be kept to a minimum.
Cross-examination plans shall be received by the Board at the beginning (usually Tuesday) of the hearing week before the testimony is estimated to be given.
Accordingly, cross-examination plans for the first hearing week of May 4-7 must be received by April 27, 1982.
The Board will clarify the discussion of cross-examination plans which was conducted at the conference of parties (Tr. 314-23) in a written order issued in advance of the April 13 prehearing conference.
,FOR THE ATOMIC SAFETY AND LICENSING BOARD M
~
, Chairman Lawrence Brenner g6 ADMINISTRATIVE JUDGE M
ames H. Carpphter ADMINISTRATIVE JUDGE
(
, A)
Freder K J.
n#'
ADMI4]EIRA dE JUDGE Bethesda, Maryland March 15, 1982
_