ML19332F920
| ML19332F920 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/01/1989 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#489-9556 ALAB-922, ALAB-924, LBP-88-32, LBP-89-32, LBP-89-33, OL, NUDOCS 8912190322 | |
| Download: ML19332F920 (15) | |
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L' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 DEC -1 P 4 :25 BEFORE THE COMMISSION
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o In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF S0-444 OL NEW HAMPSHIRE, e_t M.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
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l NRC STAFF COMMENTS ON THE IMMEDI ATE EFFECTIVENESS OF LBP-89-32 Mitzi A. Young Counsel for NRC Staff December 1, 1989 8912190322 e91203 g
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f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.
Off-site Emergency Planning (SeabrookStation, Units 1and2)
F I
NRC STAFF COMMENTS ON THE IMMEDIATE EFFECTIVENESS OF LBP-89-32
[
4 Mitzi A. Young Counsel for NRC Staff December 1,1989
UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION l
BEFORE THE COMMISSION r
In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEWHAMPSHIRE,et,M.
Offsite Emergency Planning i
(Seabrook Station, Units 1 and 2)
NRC STAFr COMMENTS ON THE IMMEDIATE EFFLCTIVENESS OF LBP-89-32 INTRODUCTION Pursuant to 10 C.F.R. 5 2.764(f)(2)(ii) and the Comission's Orders ofNovember16,21,and22,1989,1/ the NRC Staff submits the following coments in connection with the Comission's review of the imediate effectiveness of the Licensing Board's decision in LBP-89-32, 30 NRC _
(Nov.
9, 1989), which authorized the Director of Nuclear Reactor Regulation to issue a full power license for Seabrook. EI Under section 2.764(f)(2), the Comission is to conduct a review in order to determine whether to stay the effectiveness of a board decision 1/
Order, November 16,1989 (unpublished) (" November 16 Order"); Order, November (unpublished 21,). 1989(unpublished);
- Order, November 22, 1989 The Comission has stated that in addition to conducting its imediate effectiveness review of LBP-89-32, it would
"[I]n the interests of efficiency and effectiveness in resolving matters relating to the Licensing Boards' authorization of the issuance of a full power license," consider applications for a stay of the Licensing Board's license authorization.
November 16 Order at 1-2, 2/
LBP-89-32, slip op, at 570.
O r
which authorizes operation in excess of 5% power in order to protect the public interest based on a consideration of (1) the gravity of the substantive
- issue, (2)the likelihood that the issue was resolved i
incorrectly below, (3) the degree to which correct resolution would be prejudiced by operation pending review, and (4) the public interest. 2/
In the Staff's view, the application of these criteria to the instant proceeding leads to the conclusion that the Commission should allow the decision to become effective.
i DISCUSSION The issuance of an operating license for the Seabrook facility has been considered since the publication of the notice of the opportunity for hearing was published on October 19, 1981 (46 Fed. Reg. 61330).
Over the past eight years, issues related to the facility have teen fully ventilated and carefully evaluated by the several licensing boards convened to rule on the i:pplitstion; these boards have determined that, with respect to the matters in-controversy, regulatory requirements have been met and a license may issue. 4/
3/
Similarly, the matters to be considered in determining (whether to stay a decision pursuant to 10 C.F.R. I 2.788(e) are:
- 1) whether the moving party has made a strong showing that it is likely to prevail on th1 merits; (2) whether the party wi1*: be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public interest lies.
~/
LBP-87-10, 25 NRC 177 (1987), aff'd in part and remanded in aart, 4
ALAB-875, 26 NRC 251 (1987); ALAB-591, u NHC 341 (1985); LBP-53-31, 28 NRC 652 (1988), aff'd, ALAB-909, 29 NRC 1 (1989); CLI-88-10, 28 NRC 573 (1988), reconsideration den'd, CLI-89-3, 29 NRC 234 (1989);
l LBP-88-32, 28 NRG 667 (1985); LBP-89-17, 29 NRC 519 (1989);
LBP-89-32, 30 NRC (Nov. 9, 1989).
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i 1
1 i 1
In recent years, the focus of the operating license proceeding has
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been on whether emergency plans for Seabrook provide reasonable assurance that acequate protective measures can and will be taken in the event of a radiological emergency at Seabrook pursuant to 10 C.F.R. I 50.47(a).
The Massachusetts Attorney General, Seacoast Anti-Pollution League, New 5/
l England Coalition on Nuclear Pollution, and numerous towns
("Intervenors")
proffered over 300 contentions; over 100 days of hearings were held to consider approximately 90 admitted contentions on the State of New Hampshire Radiological Emergency Response Plan (NHRERP),
the Applicants' offsite emergency plan (Seabrook Plan for Massachusetts Connunities (SPNC)), and the June 1988, FEMA graded, full participation exercise.5/
In LBP-88-32, supra at 804, the Licensing Board determined thattheNHRERPmettherequirementsof10C.F.R.I50.47(b)and10C.F.R.
Part 50 Appendix E.
With the recent issuance of the LBP-89-32, the Licensing Board resolved all admitted issues on the adequacy of the SPHC and whether the prelicensing, full participation exercise revealed any l
fundamental flaws in Seabrook emergency plans in the Applicants' favor.
The major issue pending on the adequacy of emergency planning at 1
L Seabrook was certified to the Commission by the Appeal Board in ALAB-922, 30 NRC _ (Oct. 11,1989), during the Appeal Board's review of LBP-88-32, 5/
These include the Town of Hampton, Town of Hampton Falls, Town of
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South Hampton, Town of Kensington, Town of Amesbury, Town of Newbury, Town of West Newbury, Town of Salisbury, and City of Newburyport.
See LBP-88-32, 28 NRC at 669; LBP-89-32, slip op, at 6-7.
{/
See LBP-88-32, 28 NRC at 669-70; LBP-89-32, slip op. at 3-4, 7.
the hearings began in October 1987 and ended on June 30, 1989.
Id.
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Tr. 28289, 28296.
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the decision which found the NHRERP adequate.
The question certified in ALAB-922 was whether a determination "that adequate protective measures l
t can and will be taken in the event of a radiological emergency" under 10 C.F.R. I 50.47(a) is to be based on a review to determine if plans comply l
with the planning standards in 10 C.F.R. I 50.47(b) or whether testimony on dose reductions / consequences of certain planning b& sis accidents at a particular site might also be introduced in evidence. M The Comission, in providing that it would consider all motions to vacate or stay the Licensing Board decision authorizing the issuance of a license, recognized that this certified issue is before the Comission.
The certified issue has been fully briefed by the parties 8/ anc is ready for Comission determination.
Shortly before the Licensing Board issued LBP-89-32, the Appeal Board in ALAB-924, 30 NRC _ (Nov. 7,1989), remanded several issues in the y
ALAB-922, slip op, at 23-24.
8/
NRC Staff's Brief on the Dose Reduction Issue as Certified to the
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Comission in ALAB-922, November 13, 1989; Applicants' Brief With Respect to Issue Certified to the Comission by the Appeal Board on October 11, 1989, November 2, 1989; New England Coalition on Nuclear Pollution's Brief on Certification of ALAB-922 or, in the Alternative, Intervenors' Petition for Review of ALAB-922, October 27, 1989; Brief of Seacoast Anti-Pollution League on Certain Emergency Planning
- Issues, October 27, 1989; Brief of the Massachusetts Attorney General on the Issues Certified to the Comission by the Appeal Board in ALAB-922 Concerning the Emergency Planning Regulations October 27, 1989.
The Staff (Brief at 2) stated its view that the Comission's reasonable standard does not require admission of testimony on dose projections and dose consequences.
l.
decision on the NHRERP, LBP-88-32, for further consideration. El The Licensing Board briefly noted, in its decision authorizing issuance of a full power license, that neither ALAB-924 nor the pendency of several i
motions to submit new contentions precluded issuance of an operating license E l and later explained the basis for this conclusion in a supplemental memorandum N /.
That supplemental memorandum is also relevant to the Commission's immediate effectiveness review.
The issues remanded to the Licensing Board in ALAB-924 are largely ministerial in that they relate to minor plan revisions to provide plan h
l
~/
Both the Applicants and Intervenors have filed petitions for 9
l Commission review of ALAB-924.
Applicants' Petition for Review of ALAB-924, November 10, 1989; Intervenors' Petition for Review of ALAB-924, Novenber 21,1989("Intervenors' Petition").
H / LBP-89-32, slip op. at 569 n.87.
t L
/ LBP-89-33, 30 NRC (Nov. 20, 1989).
At the time the Licensing 11 l
l Board issued LBP-8F72, there were motions to reopen the record to ada.i t contentions concernin 1989 exercise of the Applicants'g the scope of the September 27, L
onsite plan as well as a motion for summary disposition of these contentions.
Intervenors' Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise, September 28, 1989; intervenors' Second Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise, October 13, 1989; Intervenors' Motion for Summary Disposition on Contentions JI-Onsite Ex-1 and JI-Onsite Ex-2, October 18, 1989.- The Board was not aware of Intervenors' Motion to Admit a late-Filed Contention and Reopen the Record on the SPMC Based Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY, November 9,1989, when it issued LBP-89-32.
LBP-89-33, slip op, at 34 n.20.
Subsequently, Intervenors also filed a motion to reopen the record to admit a contention on Seabrook license amendment noticed in the Federal Register on October 26, l
1989.
Intervenors ' Motion to Reopen the Record and Admit late-Filed Contention Regarding Proposed Amendment of Seabrook Operating License Application, November 17, 1989.
This motion is now moot because the amendment application was withdrawn on November 29, 1989.
Applicants' Answer to Intervenors' Motion to Reopen the Record and Admit late-Filed Contention Regarding Proposed Amendment of Seabrook l
Operating License Amendment, November 29, 1989 Attachment A.
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46
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4 implementation details for sheltering, refinement of evacuation time estimates for, and numbers of, transport dependent populations, or possible - execution of letter of agreements.
Such issues do not pose significant safety or regulatory matters which would prevent a finding of i
reasonable assurance for full power operation.
See LBP-89-33, slip op.
at 5, 9-12, 16-17, 28-29, 31, 32. N /
t For example, the Licensing Board explained in its Memorandum Supple-menting LBP-89-32 N/ that the remanded issues did not undermine its conclusion that a finding of reasonable assurance can be made for Seabrook and the license issued.
LBP-89-33, slip op, at 4-6, 40-41.
The Board found that (1) sufficient numbers of school teachers will accompany school buses where need for a safe evacuation, (2) adequate transportation and support services will be available to evacuate the transport dependent population, (3) evacuation time est'. mates for advanced life support (ALS) patients were addouate and any needed revisions in plan esacuation t
12/ In ALAB-924, the Appeal Board failed to consider the significance of the planning deficiencies it identified -- whether the matters were necessary to establish reasonable assurance, i.e., whether any of the deficiencies rose to the level of " fundamental flaw."
Fundamental flaws are exercise " deficiencies which preclude a finding of i
l reasonable assurance that protective measures can and will be taken."
t Long Island Lithting Co. (Shoreham Nuclear Power Station Unit 1),
CLI-86-II, 23 MC D77, 581 (1986).
They reflect "a failure of an essential element of a plan, Tan."and... can be remedied only through l
significant revision of the p Shoreham, ALAB-903. 28 NRC 499, l
505(1988). While this principle was developed in order to determine the significance of deficiencies revealed by an exercise, the basic i
premise underlying this principle is applicable to an assessment of the adequacy of a plan.
That is, there should be a determination j
that the alleged plan deficiency relates to an essential element of a plan which can only be remedied by a significant revision of a plan i
as opposed to minor modifications.
M / LBP-89-33, 30 NRC _ (Nov. 20,1989),
t 4
-7 i
instructions for ALS patients would be minor, and (4) implementation details for the unlikely evacuation of the greater beach population could await a post-licensing determination since peak beach season is a number of months away and there are an adequate number of shelters available.
In i
addition, the Board concluded that Intervenors' pleadings on the onsite exercise did not reveal a fundamental flaw and it would issue a decision denying the onsite exercise motions, M. at 39-40, M / and that nothing in the papers concerning the Emergency Broadcast System (EBS) contention raised matters sufficiently grave so as to justify any delay in license issuance, M. at 40-41. El s
~/ The Board indicated it would issue a decision denying the motions on 14 the onsite exercise.
LBP-89-33, slip op at 40.
15/ Aside from the matters remanded in ALAB-924, Intervenors' imediate
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effectiveness comments related to that decision may only raise those matters identified in Intervenors' petition for review.
See 10 C.F.R. 9 2.786(b).
The three matters raised in the petition""35 not require a stay of imediate effectiveness of LBP-89-32.
See Intervenors' Petition at 2-10.
First, the alleged need for secBTd shift staffing at decontamination and reception centers is based largely on conjecture.
See Intervenors' Petition at 2-5.
More l
importantly, it does not iW51ve a violation of the regulation and, as the Appeal Board concluded, "there is no realistic basis for NECNP's related concern that the reception centers will cease operations prematurely," ALAB-924, slip op, at 46-47 n.125.
Second-i the issue concerning the adequacy of sheltering for beach populations i
generally involves matters already before the Comission in its review of the question certified in ALAB-922.
See Intervenors' Petition at 5-9.
The only other matter raised conce'riiing sheltering concerr.s the exclusion of certain evidence as being untimely.
Id.
l at 8-9.
Both the Licensing Board and Appeal Board determined tHt the evidence was correctly excluded, ALAB-924, slip op. at 69 n.196, and Intervenors have failed to make the re See 10 C.F.P., i 2.786(a)(4)quisite showing for Comission review.
Third, the Appeal Board accepted the FDIA monitoring planning basis as acceptable for monitoring under the NHRERP because it concluded that Intervenors had not directly challenged the validity of these conclusions at hearing.
l (Footnotecontinuedonnextpage) l i
i l l
The Staff also agrees that ALAB-924 poses no matters of such gravity i
as to warrant delaying the effectiveness of the license.
Any modifications to the plan would be minor and such plan enhancements arising out of ALAB-924 remand issues could be left to the Staff or FEMA to verify.
Q Louisiana Power & Light (Waterford Steam Electric
- Station, Unit 3),
ALAB-732, 17 NRC
- 1076, 1103-04 (1983);
l Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-808, 21 NRC 1595, 1600 (1985);
Limerick, ALAB-836, 23 NRC 479, 495 (1986).16/
t In addition, the various motions to reopen do not raise safety significant issues which would affect the outcome in the proceeding.
As the Licensing Board concluded in LBP-89-24, 30 NRC _ (Oct. 12,1989),
the natural circulation test contention did not demonstrate any significant issue that would have been likely to have produced a different result in the licensing of Seabrook and thus no cause to reopen the hearing was shown.
Slip op, at 41-44, 51-55.
Nor were the prerequisites I
for new contentions satisfied in regard to this matter.
Slip, op.
at 44-45.
Similarly, none of the last minute attempts to reopen the (Footnotecontinuedfrompreviouspage) l ALAB-924, slip op at 39-40.
Thus, the FEMA finding on the adequacy of this plan provision was not rebutted.
Id. at 40-43; see 10 C.F.R.
L i50.47(a)(2).
The Appeal further examineT in depth thMapacity to rteet the FEMA guidance (Eracy of that conclusion.id, at 44-46) and the petit i
i basis to challenge the ac 16/ See also Consolidated Edison Co. of New York (Indian Point Station, Unit T 21, CLI-74-z3, 7 AEc 947 951 n.8, 952 (1974); accord, 313, 318 (1978}; Perry, ALAB-298, 2 NRC 730, Marble Hill,);7 NRC 736-37 (1975 WPPSS (Hanford No. 2 Nuclear Power Plant), ALAB-113, l
6 AEC 251, 252 (T!TTI),.
l
e
-9 i
record, based on contentions alleging that the scope of the September 1989 onsite exercise was not adequate, raised a significant issue that would likely change the result of this proceeding.
As the Licensing Board concluded, the proffered contentions failed to allege that the exercise was not comprehensive enough to reveal fundamental flaws in the onsite plan. N / Thus, the attempt to reopen the record on the exercise dict not meet the test for reopening the record or for the submission of new contentions.
Similarly, the last minute attempt to reopen the record to admit an EBS contention, as the Staff has previously shown, does not raise a significant safety issue that could affect license issuance because even t
the affidavits submitted by Intervenors recognize that the EBS system for Seabrook could be activated by contacting State officials or the lead EBS station in Massachusetts. E l In sum, the matters have been correctly decided below and there is no l
l matter of sufficient gravity to warrant delaying the issuance of the license.
I l
l 17/ LBP-89-33, slip op, at 39-40.
See NRC Staff Response to Intervenors'
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Motion to Admit Contention on September 27, 1989 Exercise l
I i
October 16, 1989, at 9-11, 13-14; NRC Staff Response to Intervenors Second Motion to Admit Contentions on September 27, 1989 Exercise, October 27, 1989, at 9-12.
18/ NRC Staff Response to Intervenors' Motion to Admit a late-Filed Contention and Reopened the Record on the SPMC Based Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY, November 20, 1989, at 3-10.
Such action would be consistent with the best efforts l
resumption under the realism rule.
See Long Island Lighting Co.
l Shoreham Nuclear Power Station, Unit I D LI-85-13, z4 NHL zz (1950) realismdoctrine); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-911, z9 MRc 247, 251-55 (1989) (EBS can be activated by licensee contacting the state system directly).
lL
CONCLUSION should the Commission resolve the question certified in ALAB-922 consistent with the Staff Brief on the dose reduction issue (see note 8, supra),thereare:
no matters so grave as to warrant delay of the immediate effectiveness of the Board's decision authorizing issuance of a full power license; no substantive issues for which there is a
significant likelihood that they have been resolved incorrectly below; no issues whose correct resolution would be prejudiced by operation pending review; and no other public' interest factors that would warrant staying the effectiveness of LBP-89-32.
Respectfully submitted,
'P1'.
Mi 1
. Young Cou sel for NRC Staff Dated at Rockville, Maryland this 1st day of December, 1989 2
.y
(t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al,.
Off-site Emergency Planning (SeabrookStation, Units 1and2)
CERTIFICATE OF SERVICE i
I hereby certify that copies of "NRC STAFF COMMENTS ON THE IMMEDIATE EFFECTIVENESS OF-LBP-89-32" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by double asterisks, by express mail this Ist day of December 1989:
IvanW. Smith, Chairman (2)*
Thomas G. Dignan, Jr., Esq **
Administrative Judge Robert K. Gad, III, Esq.
Atomic Safety and Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission One International Place Boston, MA 02110 Richard F. Cole
- Administrative Judge Geoffrey Huntington, Esq.**
Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission Office of the Attorney General l
Washington, DC 20555 25 Capitol Street Concord, NH 03301 Kenneth A. McCollom**
l Administrative Judge Mrs. Anne E. Goodman, Chaiman 1107 West Knapp Street Board of Selectmen Stillwater, OK 74075 13-15 Newmarket Road Durham, NH 03824 Philip Ahrens, Esq.
Judith H. Mizner, Esq, Assistant Attorney General 79 State Street Office of the Attorney General Newburyport, MA 01950 l.
State House Station Augusta, ME 04333 Robert Carrigg, Chairman Board of Selectmen John Traficonte, Esq.**
Town Office L
Assistant Attorney General Atlantic Avenue l
Office of the Attorney General North Hampton, NH 03862 One Ashburton Place, 19th Floor Boston, MA 02108 William S. Lord Board of Selectmen Town Hall - Friend Street Amesbury, MA 01913
3 i O j
-2 Diane Curran, Esq.**
Harmon, Curran & Tousley i
2001 S Street, NW Hon. Gordon J. Humphrey Suite 430 United States Senate Washington, DC 20009 531 Hart Senate Office Building Washington, DC 20510 Calvin A. Canney City Hall Peter J. Matthews, Mayor 126 Daniel Street City Hall Portsmouth, NH 03801 Newburyport, MN 01950 i
Allen Lampert Michael Santosuosso Chairman Civil Defense Director Board of Selectmen Town of Brentwood South Hampton, NH 03827 20 Franklin
.Exeter, NH 03833 Ashod N. Amirian, Esq.
Town Counsel for Merrimac William Armstrong 145 South Main Street Civil Defense Director P.O. Box 33 Town of Exeter Bradford, MA 01835 10 Front Street i
Exeter, NH 03833 Robert A. Backus Esq **
Backus, Meyer & Solomon Gary W. Holmes. Esq.
116 Lowell Street Holmes & Ellis Manchester, NH 03106 47 Winnacunnet Road Hampton, NH 03842 Paul McEachern, Esq.**
Barbara J. Saint Andre, Esq.
Shaines & McEachern Kopelman & Paige, P.C.
25 Maplewood Avenue 77 Franklin Street P.O. Box 360 Boston, MA 02110 Portsmouth, NH 03801 R. Scott Hill-Whilton, Esq.
Sandra Gavutis, Chairman Lagoulis, Clark, Hill-Whilton Board of Selectmen
& McGuire RFD#1, Box 1154 79 State Street Kensington, NH 03827 Newburyport, MA 01950 i
H.J. Flynn, Esq.
I Assistant General Counsel Federal Emergency Management Agency 500 C Street, S.W.
Washington, DC 20555 I
,-o-ee-.----,
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- l-Atomic Safety and Licensing Board Atomic Safety and Licensing Panel (1)*
Appeal Panel (6)*
U.S. Nuclear Regulatory Comission U.S.
Nuclear Regulatory Comission Washington, DC 205SS.
Washington, DC 20555 OfficeoftheSecretary(16)*
U.S. Nuclear Regulatory Comission Washington, DC 20555 Attn: %cketing and Service Section
$4 w MLAlf v
MitziL A. Young '
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,4 Couns(1 for NRC Staff a
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