ML19332F919

Necnp Request for Stay of Immediate Effectiveness of LBP-89-32 Pending Resolution of Outstanding Licensed Issues.* Commission Must Resolve Issues Before Plant Allowed to Operate.Svc List Encl

ML19332F919
Person / Time
Site:	Seabrook
Issue date:	12/01/1989
From:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#489-9555 ALAB-922, ALAB-924, LBP-88-32, LBP-89-32, OL, NUDOCS 8912190318
Download: ML19332F919 (11)

Text

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t December 1, 1989 POCKETED UNITED STATES NUCLEAR REGULATORY COMMISSION Uwr

, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

' ' '89 DEC -1 P2 :58 >

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g ~In'the Matter-of ) 3:,

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Public Service Company of )  ? ..

-New Hampshire,'et'al. ) Docket No. 50-443 OL -O

.(Seabrook Station, Units 1 & 2) )

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S REQUEST FOR STAY OF IMMEDIATE EFFECTIVENESS OF LBP-89-32 PENDING RESOLUTION OF OUTSTANDING LICENSING ISSUES Introduction In conformance with the Commission's order of November 16, L 1989, as amended by its order of November 22, 1989, the New Eng-land-Coalition on' Nuclear Pollution ("NECNP") submits in con-solidated form the following application for a stay of the

.Seabrook operating. license and comments on whether LBP-89-32 L 'should be made immediately effective. NECNP also adopts and

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l; incorporates by reference the stay applications and immediate effectiveness comments' filed by the Massachusetts Attorney Gen-eral', the' Seacoast Anti-Pollution League, and the Town of'Hamp-ton.

The standard for both stay motions and immediate effective-l ness comments is an equitable one, designed to help the Commis-sion judge whether on balance, the interests of the parties and the public are best served by giving effect to a Licensing Board's validly issued initial decision while unresolved appel-8912190318 891201 PDR ADOCK 05000443 G PDR '

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ye o -late issues are pending.1 In this case', there exists no validly issued initial decision to which these criteria would appropriately apply. The Commission should not-be deciding whether to make LBP-89-32 immediately effective, but whether to immediately vacate it on the ground that the Licensing Board exceeded its authority when it permitted the issuance of an oper-ating. license while material licensing issues were pending before it. LBP-89-32 and its supplement, LBP-89-33 must be reversed because they flagrantly violate the safety and public participa-tion requirements of the Atomic Energy Act.

While NECNP believes that application of the stay and immediate effectiveness criteria is not appropriate here, in the alternative it urges the-Commission to stay the effectiveness of LBP-89-32 pending the resolution of all outstanding licensing issues. .As discussed below, the illegality of LBP-89-32 and LBP-89-33 overwhelms all other equitable considerations. Additional arguments in favor of a stay are made in briefs filed by other Intervenors.

In' addition, we remind the commission of its promise of

-eight' years ago to the United States Court of Appeals that it

.would not license Seabrook until it could determine that there was a reasonable assurance of adequate emergency planning measures, and that cost considerations would not affect this J judgment. The Commission is obligated by this commitment to L eschew any financial considerations in its immediate effective-1 E92 10 C.F.R. SS 2.788(e), 2.764 (f) (ii) (1) .

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vs ness review, and to postpone the= issuance of an operating license  !

until it is assgred on the merits that reasonable protective measures can and will be taken in the event of a radiological emergency.at Seabrook.

ARGUMENT I. LBP-89-32'S AUTHORIZATION OF LICENSE ISSUANCE FOR SEABROOK WAS UNLAWFUL.

Section 50.47(a) of the Commission's regulations provides that "no oneratina' license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that.adequata protective measures can and will be taken in the event of a radiological emergency." (emphasis added) NRC regulation 10 C.F.R. S 50.57(a) also generally provides that i operating. license issuance is predicated upon findings, inter i alia, that the facility will operate "in conformance with the rules.and regulations of the-Commission" and that there is rea-sonable assurance that the plant can be operated "without endangering the health and safety of the public." Moreover, in order to authorize issuance of an operating license in a contes-ted case,.a Licensing Board must render an initial decision which contains " findings of fact and conclusions of law on the matters

'put into controversy by the parties to the proceeding..." 10 C.F.R. SS 2.760, 2.760a.

Each of these provisions makes it indisputably clear that the Licensing Board has no authority to issue a reactor operating ,

license unless and until it has made the requisite findings, on the record, of compliance with the Commission's emergency plan-ning standards.

<- i In ALAB-924,'the Appeal Board reversed.the Licensing Board's 1988 findings of compliance with NRC emergency planning regula- )

tions2 on four separate issues: letters of agreement with teachers, the special needs survey, evacuation' time estimates for special facilities, and implementing detail for sheltering. The effect of that reversal was to nullifv LBP-88-32's " findings of fact and conclusions of law" with respect to those key elements of the New-Hampshire Radiological Emergency Response Plan.3 By partially reversing LBP-88-32,.the Appeal Board revoked the basis for the issuance of an operating license. In order to issue a license following reversal by the Appeal Board, the Licensing Board must conduct new proceedings and reach new find-ings and: conclusions of law. It may not, as the Licensing Board -

did in LBP-89-32, simply re-affirm the correctness of.its deci-sion and brush aside the significance of the remanded issues in a footnote. Accordingly, the Licensing Board acted outside the scope of its authority when it permitted issuance of an operating ,

license for Seabrook in LBP-89-32.

II. THE LICENSING BOARD'S MEMORANDUM SUPPLEMENTING LBP-89-32 i DOES NOT CURE THE ILLEGALITY OF LBP-89-32.

On' November 20, 1989, the Licensing Board issued LBP-89-33, a memorandum that purports to supplement and justify LBP-89-32.

r Rather than support LBP-89-32, however, the Memorandum only 2 LBP-88-32, 28 NRC 667 (1988).

3 As defined in Black's Law Djctionary (West Publishing Co.

1968),.to reverse is to " overthrow, vacate, set aside, make void, annul, repeal, or revoke, as to reverse a judgment, sentence or decree, or to change to the contrary or to a for- 3 mer condition."

4 serves to amplify the gravity and recklessness of the Licensing ,

i Board's error in interpreting its obligations under NRC regula-tions and the Atomic Energy Act.

First, the Licensing Board's inference that the Appeal Board implicitly approved operating license issuance by affirming part of LBP-88-32 is contradicted by the regulations, which preclude the issuance of a license where any contested issue remains unresolved. 10 C.F.R. S 2.760(c) (1) . The Licensing Board had no need to speculate about the intent of the Appeal Board in light of this clear regulatory provision. In the. face of reversal of four of its findings, the Licensing Board-had no basis for issu-ing a license.

Remarkably, the Board also claims to be aware of no regula-S tion or reported decision "which would-foreclose the issuance of an operating license once the basic-findings under 10 C.F.R.

50. 4 7 (a) (1) and 50.57(a)(3) have been made despite the pendency of open matters." LBP-89-33 at 3. This statement completely-ignores the fundamental effect of ALAB-924, which was to par-tially . invalidate the " basic findings under- 50.47 (a) (1)" that were made by the Licensing Board in LBP-88-32. It should be noted in, addition that 10 C.F.R. S 50.57(c) requires compliance with all NRC rcgulations before issuance of an operating license.

.The Appeal Board's remand indicates not only noncompliance with the general " adequate protective measures" standard of 10 C.F.R. i S'50.47(a)(1), but also with 10 C.F.R. S 50.47 (b) (1) , which requires assignment of responsibilities and adequate staffing of principal response organizations, and 10 C.F.R. S 50.47 (b) (10) ,

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.which~ requires the establishment of a " range of protective actions ... for emergency workers and the public."

The Board then goes on to make an inapposite and half- I hearted comparison between this case and prior decisions in which the Appeal Board has approved post-licensing resolution of open i issues.- Id2 At the same time it invokes these decisions, the h

' Licensing Board notes the fundamental distinction that "(hjere,

[ or course, the question is whether post-licensing consideration of open matters by an adjudicating board is appropriate." Id2 at 3-4.  ;

The assignment of emergency planning " details" or-adminis-trative matters to the Staff for post-licensing resolution 4 rests on.a determination that no hearing is necessary or appropriate to j resolve such minor matters. As the Licensing Board concedes, those are not the circumstances presented by this case.S I i

.The Licensing Board does not assert that hearings are not necessary, but rather that they can be postponed. As the Licens-ing Board is-well aware, there is only one type of licensing' l action for which' Congress ha's permitted licensing before the com-  !

4 Eeg PhiladelDhia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 495 (1986), citiDS Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3 ) , ALAB-732, 17 NRC 1076 (1983).

5 With particular respect to the sheltering issue, the Appeal Board made it quite clear that the deficiencies could not be corrected by an explanation from the Licensing Board or delegation to the Staff for post-licensing resolution. The l Appeal Board held that new implementing detail for the sheltering option must be in place before the NHRERP can be anoroved. ALAB-924 at 68, note 194, citina Lono Island Licht-ina Co. (Shoreham Nuclear Power Station, Unit 1), A LAB-8 3 2 , 23 NRC 135, 156-57 (1986).

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pletion of hearings: license amendments posing "no significant ,

hazards" considerations. 42 U.S.C. 5 2239(a) (2) (A) . Congress made no such provision for the issuance of an original operating i license.6 Intervenors are entitled to a hearing on the remanded issues before the Seabrook operating license can be granted.7 i

III. The Commission Is Bound By Its Commitment to the United States Court of Appeals to Resolve Emergency Planning Issues, Without Consideration of Economic Factors, Before It Allows Seabrook to Operate.

Immediately after the NRC's emergency planning regulations were promulgated in 1980, the Seacoast Anti-Pollution League petitioned the NRC to hold hearings to determine whether, given the uniquely congested conditions of the Seabrook coastal resort E

area, it would be possible to develop adequate evacuation plans that would comply-with the new rule. SAPL argued that this determination should be made before additional billions were j spent on the plant. In defending its denial of SAPL's petition before the U.S. Court of Appeals for the District of Columbia, the Commission vowed that if it appears at the operating license review that the infeasibility of EPZ evacuation renders it impossible l

l 6 There is thus no legal basis for the Licensing Board's attempt to apply the "no significant hazards" doctrine to this case by invoking (1) the alleged " low probability" of a sheltering action and (2) the supposition that the New Hampshire beach population does not " peak" until July. LBP-89-33 at 31.

7 The Board concedes that the sheltering issue is not likely to be resolved "on the existing record." LBP-89-33 at 31.

With respect to the three other remanded issues, however, the Board attempts without success to patch together an explana-tion on this record that is intended to avoid the conduct of a remanded hearing. For reasons discussed at length in the Intervenors' Supplemental Motion and Memorandum in Support of November 13 Motion to Revoke, which will not be repeated here, this effort fails utterly.

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I for PSC t'o provide the requisite " reasonable }

1 assurance," the operating license will not be grsnted.

Seacoast An'ti-Pollution Leacue v. NRC, 690 F.2d 1025, 1030 (D.C.

-Cir. 1982). The NRC also assured the Court that it would not allow its judgment' to be " skewed" by the utility's multi-billion dollar investment in the plant. Id2 at 1033. Based on these assurances, the Court affirmed the NRC's decision.

r The core issue'in this case is the same one raised.by SAPL eight years ago -- i.e., whether adequate protection can be-pro-vided during the summer to the thousands of people-crammed onto the Seabrook beaches; in light of the lengthy evacuation times and lack of' effective sheltering. The Intervenors have demonstrated on the record that emergency planning in the

.Seabrook EPZ will achieve no meaningful dose reductions during a range of accidents at Seabrook. The question of whether Seabrook can be licensed in light of that evidence is still unresolved and pending before the Commission amid a storm of controversy.8 As  !

the Appeal Board recognized in ALAB-922, when it referred this issue to the Commission, central questions about the meaning of the emergency. planning standard have yet to be resolved. In addition, the Appeal Board has remanded to the Licenring Board the issue of implementing procedures for sheltering, whose L resolution is tied to as-yet-unresolved questions regarding the adequacy of sheltering. ALAB-924 at 69.

l L l 8 The Appeal Board's brand new, unorthodox interpretation of the emergency planning standard, which would render emergency l planning a discretionary measure, is also before the Commis- 1 sion. Egg ALAB-922 (October 11, 1989). 1 i-1 _ _ _ _ _ _ _ _ _ .- _ _ - - . .

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• In keeping with its" promise to-the United States Court of '

Appeals, the Commission must resolve these issues before it t

- allows ~Seabrook to operate. It must also quickly reverse the Licensing Board, whose-decision to. license the plant despite the

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pendency before it of material licensing issues graphically demonstrates that its judgment has become skewed by the economic pressure'to license Seabrook. To hold otherwise, and to allow I

the plant'to operate in_ spite of_the patent illegality of LBP 32 and the pendency of fundamental questions regarding the ade-quacy of. emergency planning for Seabrook,.would place the Commis-sion in contempt of the Court's decision in Seacoast Anti-  !

Pollution Leacue v. NRC.

Respectfully submitted, i d

ane Curran-HARMON, CURRAN & TOUSLEY 2001 "S" Street N.W. Suite 430

,j Washington, D.C. 20009 (202) 328-3500 December ~1, 1989 l 1

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G CERTIFICATE OF SERVICE l

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SEABROOK SERVICE LIST l' Offsite Commist, ion

,. Atomic Safety and Licensing Paul McEachern, thq. R. Scott Ilitt-Whitton

'hanneth M. Cart thed Panet Shaines & McEachern lagoulis, Cark, Ilill-Whitton

]

Chairman ' US Nuclear Regulatory Commission P.O. Box 360 and McGuire U.S. Nuclear Regulatory C(unmiukm Wuhington,D.C 20555 Maplewood Avenue 79 State Street Washington, D.C 20555 Portsmouth,Nll 03801 Nemturyport,MA 01950 j

' Docketing and Service Branch j

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Washington, D.C 20535 Stanley W. Knowlea thrd of Selecimen - "nomm G. Dignan, thq. Richard Donovan

. <James R. Curtins P.O. Don 710 R.K. God !!, Esq. TEMA ,

. Comminskmer .

North flampton, Nil 03R26 Ropes & Grey 442 J.W. McCormack (POCil) (

US Nuclear Regulatory Commission One Internat onal Place lkston,MA 02109  !

Washington, D.C 20555 - Senator Gordon J. Ilumphrey Doston, MA 02110 2624 1 U1 Senate . Senator Gordon J. Ilumphrey l

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• p ' Appeal Board - Office of the General Counsel U1 Nuclear Regulatory Comm. Michael Santosuosso, Chairman US Nuclear Regulatory Commsn Judith II. Mizner, Esq.

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. Atomic Srdety and Ikensing - Calvin A. Canney Geoffrey M. Iluntingtcu,, thq.

. Ar. peal Board City Manager Offics of the Attorney General

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Ika:nn,MA 02109

- Dr. PJchard F. Cok . Gary W. Ilolmes,lhe,.

Atorals Safety and Licenwg thed Alfred V.Sarger.t. Chairmen llotmes & Elis 1UA Nuclear Re5u'atory Commmion - Beard of Selectmen . 47 Winneer ment Raad Wash'.ngton, D.C 20535 ' Town of Salisbury,MA n1950 llampton, Nil 03M2 Ker.nca A. McCollom - . Rep. Suzanne Dreiseth Mrs. Anne C Goodman Atomie Safety and 1kensing Board Town of l'ampton Falls Doord of Selectmen i US Nuclear Regulatory Commission . Drinkwater Road - 1315 New Market Road Washington, D.C 20$35 llampton Falls, NI1 03M4 Durham, Nil 03M2

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