ML19351D887
| ML19351D887 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/13/1980 |
| From: | Becker S, Lipeles M MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19351D886 | List: |
| References | |
| NUDOCS 8011200341 | |
| Download: ML19351D887 (6) | |
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NUCLEAR REGULATORY COMMISSION f,
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL
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In the Matter of F
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Docket Nos. 50-443
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PUBLIC SERVICE COMPANY CI 50-444
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NEW HAMPSHIRE, et al.
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(Seabrook Station, Units 1 and 2)
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RESPONSE OF COMMONWEALTH OF MASSACHUSETTS TO MOTION TO SUSPEND CONSTRUCTION The New England Coalition on Nuclear Pollution ("NECNP")
has moved for an order suspending'the Seabrook construction permits during the remand proceedings mandated by the Nuclear CLI-80-33, 12 NRC Regulatory Commission ("the Commission").
The Commonwealth of Massachusetts hereby submits (1980).
its response to NECNP's motion.
INTRODUCTION _
The Licensing Board initially authorized the issu7.nce of construction permits for Seabrook Station, Units 1 and 2, on the assumption that the nuclear power plant would be if sufficiently safe, with respect to seismic siting criteria, of designed to witnstand a Safe Shutdown Earthquake ("SSE")
Intensity VIII and maximum effective ground acceleration of 8011200 A
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0.25g. LBP-76-20, 3 NRC 857 (1976).
On review, the Appeal Board rejected NEC*iP's evidence which indicated that the SSE for the Seabrook site would be of greater intensity and ground acce 2 ration.
The Appeal Board also discarded NECNP's critique of the methodology by which the intensity and ground acceleration levels adopted by the Licensing Board had been es timated.
ALAB-422, 6 NRC 33 (1977); ALAB-561, 10 NRC 410 (1979) (supplemental and dissenting opinions).
However, the Commission's recent remand order has cast doubt on the calculations and assumptions upon which construction has heretofore progressed.
CLI-8'0-33, 12 NRC (1980).
The Commission directed the Appeal Board to reconsider both NECNP's evidence with respect to the determination of the correct intensity level and NECNP's critique of the staff's (and Board-adopted) methodology for computing maximum ground acceleration.
As a result, the Seabrook plant is currently being constructed not only in the absence of a valid finding that it would withstand an SSE, but in the midst of doubt and confusion regarding the severity of the earthquake which it must be designed to withstand.
Accordingly, the commonwealth suggests that construction not proceed pending the remand unless the applicant demonstrates that any construction to be undertaken will not involve structures parentially affected by the outcome of the Commission's remand.
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DISCUSSION In previously suspending the Seabrook construction permits on other grounds, the commission articul'ted the standards to i:
be applied in reviewing a motion to sus',end construction
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pending remand.
[T]he question of suspension of the permits herein must at the least be decided on the basis of (1) traditional balancing of equities and (2) consideration of any likely prejudice to further decisions that might be called for by the remand.
Public Service Co. of New Hampshire (Seabrook Station, Units 1
& 2), CLI-77-8, 5 NRC 503, 521 (1977).
This test is notably less stringent than that applicable to a motion for a stay pending appellate review.
Id.
In the latter situation, the moving party.has lost the most recent round of litigation and must therefore demonstrate his I
likelihood of ultimate success on the merits.
Yet in the former situation, such as that present here, the moving party has most recently prevailed and need not further establish the strength of his case.
NECNP is "in a far stronger position" than that of an unsuccessful litigant seeking a stay; it has J
"already been successful in exposing defects in the prior proceedings, leaving the applicant without presumptively valid permits in hand."
Consumers Power Co. (Midland Plant, Units 1
& 2),
ALAB-458, 7 NRC 155, 160 (1978).
Another salient feature of a motion for suspension pending remand, in contrast to a motion for stay pending appeal, is that the applicant - the party opposing the motion - must bear
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the burden of going forward.
Union Electric Co. (Callaway y
Plant, Units 1 & 2), ALAB-348, 4 NRC 225 (1976).
Thus, Public Service Company of New Hampshire
(" PSCO" ) must demonstrate m
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that,.although it lacks a presumptively-valid permit, the
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balance of equities weighs in its favor and the unconditional y
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continuation of construction will not prejudice further
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f decisions regarding the seismic design of the Seabrook plant.
i With respect to equitable considerations, PSCO naturally has an immediate interest in pursuing construction pending But that short-sighted strategy may well prove mora remanu.
costly to PSCO than a temporary suspension of construction of the structures affected by this dispute.
If the remand proceedings establish that modifications are warranted, the most fundamental elements of Seabrook's design will likely be affected.
It will be far more economical to incorporate such modifications at or near the outset than to tear down and rebuild that which was built during the remand.
Accordingly, construction should now proceed only if PSCO shows that the structures under construction will not have to be rebuilt as a result of the remand.
Typically, a construction permittee assumes the risk that, as it proceeds through the permitting process, it may ultimately fail to obtain an operating license.
That argument does not support continued unconditional construction at l
I Seabrook, however, because PSCO lacks a presumptively-valid permit.
Moreover, it is reasonably foreseeable that basic
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. design modifications will be required in order to ensure t'at h
Seabrook is earthquake-resistant.
The Commission's remand order necessarily implies that upon reopening the record, the Appeal Board may calculate differently the intensity and ground aeceleration of Seabrook's Safe Shutdown Earthquake.
One member of the original Appeal Board has already concluded that the SSE calculations upon which Seabrook's current design is based are erroneous and that the correct intensity and ground acceleration are actually greater than the levels suggested by the staff and P3CO.
In light of these considerations, in addition to the fact that NECNP most recently prevailed before the Commission, PSCO cannot sustain its burden of proving that the equities favor unconditional c,onstruction pending remand.
With respect to the second factor - potential prejudice to further decisions - it is difficult to comment meaningfully before PSCO responds to the Board's Order of October 30, 1980.
The Board's Order underscores the fact that PSCO must bear the burden of proving that whatever the resolution upon remand of the seismic design issues, the construction undertaken in the interim will not be affected.
Unless and until PSCO meets that burden, it is reasonable to assume that any additional construction will be rendered virtually useless if the j
fundamental design criteria are modified as a result of the remand.
Ccnversely, the reluctance to require structures to be torn down could subtly affect the ultimate determination of Seabrook's SSE.
The Commission has previously noted that in such situations,
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"the risk of public agencies and courts t
accepting less desirable and limited options or,
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worse, countenancing a fait accomoli are foreboding."
(Seabrook Station, Units 1 Public Service Co. of New Hampshire (1978) cuoting Audubon
& 2), CLI-78-14, 7 NRC 952, 960 n. 7, 76-1347 (1st of New Har.ioshire v. United States, No.
Society In this case, with the seismic soundness Cir., Dec. 17, 1976).
of Seabrook's design in question, construction pending remand Only that threatens to prejudice the ultimate outcone.
construction which would not compromise the outcome should take place during the remand.
CONCLUSTON For the reasons set forth abcVe, the Commonwealth of Massachusetts supports NECNP's motion to suspend construction, but qualifies that support by limiting it to structures potentially affected by the remand.
Re ctfully sub itted,
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STUART 'K.
BECKER MAXINE L. LIPELES Assistant Attorneys Ge?eral Environmental Protection Division Public Protection Bureau Department of the Attorney General One Ashburton Place, 19th Floor 02108 Boston, Massachusetts (617) 727-2265
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