CLI-89-19, Order CLI-89-19.* Denies Applicant 890811 Application for Exemption from 10CFR50,App E,Section IV.F.1 Requirements to Conduct Onsite Emergency Plan Exercise within 1 Yr Before Issuance of License.W/Certificate of Svc.Served on 890915

Order CLI-89-19.* Denies Applicant 890811 Application for Exemption from 10CFR50,App E,Section IV.F.1 Requirements to Conduct Onsite Emergency Plan Exercise within 1 Yr Before Issuance of License.W/Certificate of Svc.Served on 890915

ML20247L658
Person / Time
Site:	Seabrook
Issue date:	09/15/1989
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	PUBLIC SERVICE CO. OF NEW HAMPSHIRE
References
CON-#389-9176 CLI-89-19, OL, NUDOCS 8909250037
Download: ML20247L658 (9)

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NUC EUA R C ON

-COMMISSIONERS:

'89 SEP 15 A10:50 Kenneth M. Carr, Chairman Thomas M. Roberts

'Kenneth C. Rogers- '

James R. Curtiss 'KS

1. *" .[:6, PUBLIC SERVICE COMPANY OF SERVED g 15 9 NEW HAMPSHIRE- Docket Nos. 50-443-OL 50-444-OL (Seabrook Station, Units 1 and 2 ORDER CLI-89-19 This order responds to Applicants' Application for an Exemption from the Requirement of 10 CFR Part 50, Appendix E, Section IV.F.1, for the Conduct of an Exercise of the Licensees' Onsite. Emergency Plans Within One Year Before Issuance of a Full-Power Operating License"

(" Application" or " exemption request"), dated August 11, 1989. On 1

consideration of the Application and the parties' responses , all of I The following responses were tiled: New England Coalition on Nuclear Pollution's Opposition to Applicants' Request for an Exemption from the Requirement to Exercise the Onsite Emergency Plan within a Year Prior to Issuance of Operating License or, in the Alternative, Request for a Hearing on Applicants' Application, dated August 21, 1989; Response of MassAG to Applicants' Application for an Exemption From the Requirement of 10 C.F.R. Part 50, Appendix E, Section IV.F.1., dated August 21, 1989, Response and Objection to Applicants' Application for an Exemption from the Requirement of 10 CFR, Part 50, Appendix E,Section IV.F.1., dated August 21, 1989 and filed by the Seacoast Anti-Pollution League (SAPL) and NRC Staff Response to Applicants' Application for an Exemption from 10 C.F.R. Part 50, Section IV.F.1. (Onsite Exercise One Year Before Full Power License, dated August 28,1989).

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- which unequivocally opposed the exemption, the Commission denies the Applicants' exemption request for. the reasons briefly stated below, i

Dispensing with a comprehensive recitation of the nearly eight years of this licensing proceeding', we begin with the current schedule. The '

Atomic. Safety and Licensing Board set November 30, 1989 as its target

.j date to issue a decision that will' decide all remaining presently j edmitted contentions in this proceeding. Included.in that decision will be the resolution of the contentions relating to the Applicants' emergency plan for those portions of the emergency planning zone located in the Commonwealth of Massachusetts, and to the full participation emergency exercise conducted in June, 1988. Lacking the admission of any new contention, the order expected on November 30, 1989 would have the potential to authorize issuance of the full power license and conclude this proceeding.

Pursuant to the Comission's regulation, from which Applicants seek relief in their instant petition, if more than a year has passed since a full participation exercise, an exercise of the Applicants' onsite plan must be held within one year before license issuance.2 That circumstance has transpired, and an exercise has been scheduled for the last week in September.

Interveners have stated that they want the opportunity to litigate the results of the exercise. Applicants are concerned that such litigation could be protracted, causing delay in issuance of a license, The full participation exercise must be repeated if necessary to meet the requirement that such an exercise be held within two years of issuancc of the operating license.

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and ultimately eventuating in the need for a . full-participation exercise in June,1990, beginning an " endless loop of litigation".

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

CLI-88-9, 28 NRC 567, 570 (1988)).

Applicants' made their request under 10 C.F.R. 'S 50.12, the Comission has, therefore, considered it under the provisions of that -

rule.3 For the reasons stated by the Staff 4, we find that Applicants havemadeaninsufficientshowingunder650.12(a)(2)(ii).

Under 9 50.12(a)(2)(iii), we find that Applicants' assertions of harm from delay of an " endless loop" of exercises are speculative.

Moreover, as _to financial costs, we have reservations whether indirect costs of compliance with the rule, such as ensuing litigation or. costs flowing from delays caused by litigation, are properly considered in evaluating an exemption request. This is so because those very grounds that would most support the need for an adjudication would be those most likely to cause delays. In such circumstances the rule would work at a 3

In light of our decision we need not parse out the distinctions tetween a petition for waiver under 10 C.F.R. 6 2.758 and a request for

. an exemption under 10 C.F.R. S 50.12. He do, however, emphasize a similarity: neither is intended under the rules to be brought directly to the Commission. We would, therefore, expect that except in the most exceptional circumstances which are not present here, such requests will be filed with the appropriate Board or staff officer. The Commission is  ;

kept informed of the course of adjudicatory proceedings and has the >

authority to direct that such a matter be forwarded to it directly when that is warranted. In this instance, because we wish to expedite this decision so that the parties will have it promptly for planning purpos< ,

and because we have the views of the parties and of the Staff, who would I. decide a 5 50.12 petition in the first instance, the Commission will render a decision.

4 See Staff Response at 8-13. Insofar as Interveners have made like arguments we agree with them as well.

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m contrary purpose to the regulatory purpose inherent in affording an opportunity for hearing.

Finally, Applicants urged a public interest exception due to an alleged need for power. Putting aside the question whether it is legally permissible to balance safety and need for power, we find in this case the generalized projections of need for power are insufficient to outweigh, under 9 50.12(a)(2)(vi), the publi . interest which underlies the safety provisions of the Comission's emergency planning rules.

The Comission believes that given the fact that the on-site plan has previously been exercised and adjudicated, in the event the exercise provides the occasion for any admissible contention,5 procedures for expedition can alleviate Applicants' concerns without working any unfairness on othar parties and without diminishing the protection provided the public by the Comission's emergency planning regulations.

As.we have had occasion to say before, we believe that our responsibility-under the Administrative Procedure Act to decide cases within a reasonable time makes it appropriate for us to establish expedited procedures when necessary. 28 NRC at 570. In this regard, we direct the Staff to issue its report on the exercise no later than October 16, 1989.

S In order to have any contention on an exercise considered in a hearing Comission case law establishes the need to allege a fundamental flaw. See Long Island Lightino Com Unit 1)' AEAB-903, 28 NRC 499 (1988)pany (Shoreham In addition, the criteria Nuclear for Power Station, late-filed contentions are applicable to any contentions filed on the onsite exercise, as they are to all contentions filed after the original date by which contentions are due.

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The Applicants' exemption request is denied.0 It is so ORDERED.

7 f For the Commi on g

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F SAMUEL J. :HILK l_ Secretary of tre Comission i

Dated at Rockville, Maryland 4

this[ddayofSeptember,1989 l.

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Any request for a hearing on the exemption request is also denied.

7 Commissioner Curtiss did not participate in this order.

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UNITED STATES OF AMERICA j NUCLEAR REGULATORY COMMISSION In the Matter of I i

l PUBLIC SERVICE COMPANY OF NEW l Docket No.(s) 50-443/444-OL HAMPSHIRE. ET AL. 1 (Seabrook Station, Units 1 and 2) 1 I

I CERTIFICATE OF SERVICE I

1 herebi certify that copies of the foregoing CLI-89-19 DATED 9/15/89 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Administrative Judge B. Paul Bo11werk, 111, Chairman Alan S. Rosenthal Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Raoulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Howard A. Wilber Administrative Law Judge l

Atomic Safety and Licensing Appeal Ivar W. Smith, Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ,

Washington, DC 20555 Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Kenneth A. McCollos Atomic Safety and Licensing Board Atomic Safety and Licensino Board U.S. Nuclear Regulatory Comeission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Robert R. Pierce, Esquire James H. Carpenter Atomic Safety and Licensing Board Alternate Technical Member U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Edwin J. Reis. Eso. Lisa B. Clark Office of the Seneral Counsel Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 U.S. Nuclear Reculatory Commission Washington, DC 20555

Docket No.(s)50-443/444-OL CLI-89-19 DATED 9/15/B9 Diane Curran, Esa. Thomas 6. Dignan, Jr., Esc.*

Harmon, Curran & Tousley Ropes & Gray 2001 S Street, N.W., Suite 430 One International Place Washington, DC 20009 Boston, MA 02110 Robert A. Backus, Esq. Paul McEachern, Esq.

Backus, Heyer & Solomon Shaines & McEachern 116 Lowell Street 25 Maplewood Avenue, P.O. Box 360 Manchester, NH 03106 Portsmouth, NH 03801 Bary W. Holmes, Esq. Judith H. Mizner Holmes k Ells Silverglate, Gernter, Baker, Fine.

47 Winnacunnet Road Good and Mitzner Hampton, NH 03842 88 Broad Street Boston, MA 02110 Charles P. Graham, Esq. Jane Doherty McKay, Murphy and Graham Seacoast Anti-Pollution League 100 Main Straat 5 Market Street Amesbury, MA 01913 Portsmouth, NH 03801 Leonard Kopelman, Esq.

Ashed N. Amirlan, Esq. Kopelman and Paige, P.C.

376 Main Street 77 Franklin Street Haverhill, MA 01830 Boston, MA 02110 George W. Watson, Esq. Edward A. Thomas Federal Emergency Management Agency Federal Emergency Management Agency 1 500 C Street, S.W. 442 J.W. McCormack (PDCH)

Washington, DC 20472 Boston, MA 02109 Georce D. Bisbee, Esa. Paul A. Fritzsche, Esc.

Assistant Attorney General Office of the Public Advocate Office of the Attorney General State House Station 112 25 Capitol Street Aucusta, ME 04333 Concord, NH 03301 l

• Copy faxed upon request.

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Docket No.(s)50-443/444-OL CLI-89-19 DATED 9/15/89 Suzanne Breiseth John Traficonte Esq.

• Board of Seled: mon Chief, Nuclear Safety Unit Town of Hampton Falls Office of the Attorney General Drinkwater Road One Ashburton Place, 19th Floor Hampton Falls, NH 03944 Boston, MA 02108 The Honorable Peter J. Brann, Esc. Edward J. Markey, Chairman Assistant Attorney 6eneral ATTN Linda Correia Office of the Attorney General Subccasittee on Energy Conservation and State House Station, #6 Power

. Augusta, ME 04333 House Committee on Energy and Commerce Washington, DC 20515 Richard A. Hampe, Esc. J. P. Nadeau Hampe & McNicholas Board of Selectmen 35 Pleasant Street 10 Central Street Concord, NH 03301 Rye, NH 03870 Allen Lampert William Armstrong Civil Defense Director Civil Defense Director Town of Brentwood Town of Exeter 20 Franklin Street 10 Front Street

'Exeter. NH 03833 Exeter, NH 03833 Sandra Savutis, Chairman Calvin A. Canney Board of Selectmen City Manager RFD #1 Box 1154 City Hall Kensington, NH 03927 126 Daniel Street Portsmouth, NH 03801 Anne Goodman. Chairman William S. Lord Board of Selectmen Board of Selectmen 13-15 Newmarket Road Town Hall - Friend Street Durham, NH 03824 Asesbury, MA 01913 Peter J. Matthews Mayor of Newburyport Michael Santosuesso, Chairman City Hall Board of Selectmen Newburyport, MA 01950 South Hampton, NH 03827

• Copy faxed upon request.

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Docket No.(s)50-443/444-OL CLI-89-19 DATED 9/15/B9 l

R. Scott' Hill-Whilton, Esquire Stanley W. Knowles, Chairman Lacoulis. Hill-Whilton & McGuire Board of Selectmen 79 State Street P.O. Bou 710 Newburyport,, MA 01950 North Hampton, NH 03862 l

Norman C. Katner Sandra F. Mitchell Superintendent of Schools Civil Defense Director School Administrative Unit No. 21 Town of Kensington Alumni Drive Box 10, RR1 Hampton, NH 03842 East Kingston, NH 03827 John F. Doherty Beverly Hollingworth 1616 P Street N.W. 209 Winnacunnet Road Washington. DC 20036 Hampton, NH 03B42 The Honorable The Honorable Gordon J. Humphrey Nicholas Marvoules ATTN: Janet Colt ATTN Michael Greenstein United States Senate 70 Washington Street Washington, DC 20510 Salem, MA 01970 Dated at Rockville. Md. this '

15 day of September 1989 Office of the retary of the Commission

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