ML20012E645

Forwards Intervenors Memo of Law Per Board 900327 Request for Oral Argument & Exhibit 1 Pages 13-15 & 31-33 of Commission Brief Filed in Ucs Case in 1983 Re Nature of Judgment at Issue in Evaluating Preoperational Testing

ML20012E645
Person / Time
Site:	Seabrook
Issue date:	03/29/1990
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	Bollwerk, Moore, Wilber NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10166 OL, NUDOCS 9004060034
Download: ML20012E645 (15)

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      <         b                    THE COMMONWEALTH OF MASSACHUSETTS                                DOCKETED USNRC L                                         DEPARTMENT OF THE ATTORNEY GENERAL j,                                            JOHN W. McCoRMACK STATE OFFICE BUILDING            'g oNE ASHBURToN PLACE. BOSTON 02106-1698                        }0 Pl2:37 P 'N N TECRE1 8 v JAMES M. SHANNoN                                                                        1 t CK', I C a ' ; e ",P moawn otNsan                                           March 29, 1990                     -   *'

Administrative Judges Moore, Bollwerk,.and Wilber >

  ,                Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington,' DC       10555

Dear Sirs:

i I enclose a copy of Intervanors' memorandum of law pursuant to'this Board's request at oral argument on March 27, 1990. In'- regard to another request (Transcript of oral Argument at_41) I also-attach hereLas-Exhibit 1 pages 13-15~and 31-33 of-the s Commission's brief filed in the'p_GE case in 1983 dealing with , the nature of the judgment at issue in evaluating 1

                   . pre-operational testing. These pages are part of the record before this Board, having been attached as Exhibit 4 to the Mass AG's May 31 Motion.to Hold Open the Record. Also, regarding the test exception set forth at 5 USC $554 (a) (3) , I                                        i attach as Exhibit 2 a portion of the Mass AG's June 21, 1989 Reply to the Responses of the Applicants and Staff to that May 31 Motion in which the law regarding the test exception is H

discussed. Finally, as to the direct " materia)ity" of low power , i testing as necessary to full cower coeration (either as a condition precedent to full power licensina.as in this case or as a condition subsequent to that licensing when that testing

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takes place after licensing.) I direct this Board's attention to footnote 7 at 15 of the Commission's 1983 U.C.S. brief: In addition to pre-operational tests, an applicant must perform low power tests (up to 5% rated power) and power ascension tests before coumencing full power operation. Thus, testina continues to be nerformed richt un until full oower coeration is authorized. Very truly yours, im IC 9004060034 900329 hn Trancod PDR ADOCK 0S000443 Chief, Nuclear Safety Unit O PDR 617) 727-2200

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_4 c, l-l IN-THE . UNITED STATES COURT OF APPEALS FOR THE DISTRICT.0F COLUMBIA CIRCUIT i No. 82-2053 l S UNION OF CONCERNED-SCIENTISTS, Petitioner,

v. .

   -1 U.S. NUCLEAR REGUIATORY COMMISSION and UNITED STATES-0F AMERICA, Respondents.

ON PETITION FOR REVIEW 0F FINAL ORDER OF THE UNITED STATES NUCLEAR REGUIATORY COMMISSION l 4 BRIEF FOR RESPONDENTS HEREEL H. E. PkAINE FRANK H. HABICHT General Counsel -

                                                                     . Acting Assistant Attorney Gen E. LEO SIAGGIE                                      ANNE S. ALMY Acting Solicitor BLAKE WATSON-Attorneys                  '

MARK E. CH0 PRO Appellate Section 1

                 . DAN E .BEREQUITE ~                                  I;andand' N&tural" . Re sou rc e s Di'                l Attorneys U.S.-Nuclear Regulatory                              U.S. Department of Justice                              !

Washington, DC ComnLission 20530 ' Washington, DC 20555 l

                                                                                                                          '1 1

JULY 1983' l l

J , 4 0 .I

     -            appropriate state.and local governmental entities. 10 C.F.R. 50.33 (g) . Just as the General Design Criteria in Appendix A require that the design of structures, systems                                :

and components important to safety include provisions for { testing those systems, Appendix E requires that plans for' coping with emergencies' include provisions'for testing thos-plans. Furthermore, as-in the case for plans for hardware structures, systems, and components important to safety, plans for coping with omergencies r are proper subjects for hearings before the Licensing Boards. s C. Praoperational Testing Prior to the issuance of an operating license, al applicant must conduct preoperational tests to ensure that structures, systems, .mui components will perform , satisfactorily in service. 10 C.F.R. Part 50, Apps. A, B.

                   'Theprimaryobhoctivesofasuitable(test)programare t
                   -(1) to provide additi.onal assurance that the facility has to provide assurance
              . b.een adequately designed ... and (2)
  . . , . s that construction and installation of equipment in the facility-have been accomplished in accordance with design.

U.S. Nuclear Regulatory Commission, Regulatory Guide 1.68,

                     " Initial Test Programs for Water-Cooled Nuclear Power Plants," at 2 (197 8) , J. A.      . Testing is a complex, lengthy,.and laborious process whereby a multitude of                                   l
                                                                                                          .)

interacting systems and components important to safety are l l l

                                                                            --e-      r>g,- - - - - +

1 a. tested to determine whether they have been constructed properly.6 "

                       -                 Among the components to be tested are those to be-used-for-shutdown and cooldown of the plant, those estab lishing conformance with safety. limits, those classified as          -

d to function-in

                         - engineeredt safety-features, thase.; assume                                               ;

case of an' accident, and those that will be used to process, store, control, or ILmit the relense of ra dioactive materials. Valves,fpumps,-fans, batteries, steam gener-  : ators, the pressurizer, instruments, and the reac, tor vessel . The control rods, l are examples of components to be tested. purification systems, electrical systems, fuel storage and handling systems, normal and emergency heat removal systems, and radiation protection systems are' examples of systems All test results, whether requiring l, that must be tested. i i b

                                 .6 As    with the design of the plant, the NRC does not provide precise specifications for the applicant to follow L                             in estaDIi'skingwa" testing, progrJuqt..,, Instead, . the. NRC - pro -

vides general guidance as to what-a preoperational See bereing NRC. program should contain if it' is to be approved. Reg Cooled Nuclear Power Plants," (1978), J.A. ____. b4 designed to

                                   . The NRC states that the program should simulate, "to the extent practical, ... the effects of control system and equipment failures or malfunctions that could reasonably be expected to occur during-the plant lifetime.

To the extent-practi & the.g,lant conditions during the tests should simulate the actual operating and" emergency conditions to which the structure, system,.or component may be subjected." Id. at 4. l 14:

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subjective or objective evaluation, are considered outside of the hearing process.7 j D.. The challenged Amendment on Emergency Exercises The Commission described the original rule as an

                                 " interim-upgrade of NRC' pl'annigregulations."-                    4+> Fed. Reg.-      1 at 75170, J.A.            ; }jjt text at note 4, supra.               In its original proposal, the Commission stated it " anticipated that further changes in the emergency planning regulations I

may be proposed as more experience is gained with implement-ing these. revised regulations ... (T]hese proposed rules may. ' require further modifications." { 44 ' Fed. Reg, at 75170, J . A . ____, . On December 15, 1981, th4 Commission proposed g

                           -      two such modifications.              46 Fed. Reg. 61132, 46 Fed. Reg.

6113 4 - (1981) , J. A. _. In the modification at issue in this lawsuit,8 a

                                           'The NRC Office of Inspection and Enforcement reviews
                                   == audits selected test procedures and results.                      Reg.

Guide 1.68, sucre note 6, at 19, J.A. . All of this may

                        -         ' Occur af ter the Licensing Board's finding that there is reasenaMe aswurance that-the plaat~canube.operatedusAfe.1%,

and' in accordance with design. - The NRC suggests that the applicant formulate plans for this testing _ before the - hearings on the construction permit. Id. at 4, J.A. ~ It' addition to preoperational tests, an applicant must

                                  . perf orm low-power tests (up to 5% rated power) and power ascension tests before commencing full-power operation.

Thus , testing . continues to be performed right up until full-power operation is authorized. Like preoperational tes:s, low-power tests and power ascension tests are not the sAh act of Licensing Board'hearingt.' IThe other proposed rule change would add a new paragraph (d) to 10 C.F.R. 50.47 to provide that no NRC or, . TE G.J. review,. finding or determination concerning the stateg ,,

 - ~ - - - - _ - _ - . - .

v case theLCommission has authority to make a reasonable

         . decision whether, in order to meet the timing requirements                                i
                                ~                                                                    J for emergency-preparedness exercises and the need for a                                    ,

1 reasonably-expeditious licensing process, licensing board initial decisions on an operating license shall normally be l made before these exercises are held.16 Petitioner's position that the Commission is 1 compelled by Section 189 (a) to hold open the adjudicatory hearing record to include the preparedness exercises cannot J be reconciled with its apparent concession that preopera- J

     . tional testing need not be tne subject of public hearings..

48 Fed. Reg at 16694, J.A. . Such tests are required 1 by Commiss' ion regulation, ,e.g., 10 C.F.R. 50.56, and clearly bear on whether the plant can and will be operated in l conformity with regulations and without undue risk. Yet - there was never any dispute in this case about the Com-l mission's longstanding practice of_ delegating-the' evaluation 1.6 We reemphartre tirata under the-present' releuthe - resulta of preparedness exercises, like other preoperational test results, remain part of the input to a final decicion on whether the requirement of 10 C.F.R. 50.47 (a) is met, that there be reasonable assurance that adequate protective

          . measures can and will be taken in a radiological emergency.

L "The commission agrees that the full-scale offsite exercise L is one important indicator of the actual state of emergency preparedness. For this reason, the Commission continues to require-that the exercise be ccnducted, and significant deficiencies corrected'or mitigated; befers fu11-power-operation is authorized for the facility." 48 Fed. Reg at 16692, J.A. . The NRC did not, as alleged by 3 commenters, remove emergency planning generally from the ,. licensing- process . Id. at 16694, J.A. . ,, l _ _ _ . .__ __ J

of these tests to the technical staff, a practice which UCS appears to accept. UCS attempts to distinguish preopera-tional testing as a kind of trivial exception to the hearing requirement, 1

        ~-

involving no more than "relatively simple questions capable of yes-no answers on such things as . whether valves will open and close," Pet. Br. at 56,.n.19., We have devoted a section of the statement of facts, supra, to describing in some detail the elaborate and often evalua-tive testing which takes place outside the adjudicatory process, so that it will be clear to the court that the petitioner's charac'terization is incorrect. The evaluation

           . of operational tests-involves something more than walking around the plant in shirt sleeves with a hard hat,              flash-light, and clipboard, marking up a checklist while tapping onLdials. Engineering judgment is often necessary to determine which tests are to be conducted, and to what degree various components and systems must be tested.

Judgment must.be used to decide whether the test results, - which may include unanticipated responses, actually demon-strate that there is reasonable assurance that systems or components will perform, satis.faeteri17 in operation. -In this key aspect petitioner's attempt to draw a fundamental distinction between preoperational testing and evaluation of emergency preparedness exercises fails. Evaluation of

             . emergency preparedness exercises does involve judgment, but so does preoperat.icna btesting. It nr entirel'y reasonable that the two be treated similarly in the licensing process.

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n e The licensing framework which excludes preopera-tional test results from hearings has existed for over twenty years. The Commission has evaluated preoperational tests in approximately seventy licensing decisions without holding adjudicatory hearings on the results. This proca- , dure has not. been echallenged hp+ Congress.,.. 6espite~. intensive . legislative focus on Commission licensing and hearing  ;

           -procedures.          "It may of ten be shaky business to attribute significance to the inaction of Congress, but under these circumstances, we think it is fair to read this history a'sa de facto acquiescence in and ratification of the Commis-sion's licensing procedure by Congress."                 Power Reactor                ,

Development Co., Rupra, 367 U.S. at 409; see also Public Servi _ce Co. of New Hampshire v. NRC, 582 F.2d 77 (1st cir.),

• cert., denied, 439 U.S. 1046 (1978).

In summation, the example of preoperational

 ~

testing confirms what reasoned analysis strongly suggests, that the Commission has discretion under the Atomic Energy Act to make important licensing determinations outside the adjudicatory process where there is good reason for doing , so. Accordingly, the Court should reject the argument 1 UCS argues, Br. at 41-42, 51-53, that FEMA's views that exercises are important to its final findings on a power plant make it illegal for the NRC to exclude the results of exercises from hearings. The impact of FEMA's cerments lethe ~ nylamaking=isNwamined in detail in the - second portion of~this argument, infra at 37-38. For purposes of this portion, we note that FEMA's views are not binding on the NRC (10 C.F.R. 50.47 (a) (2) , 45 Fed. Reg. 33

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                    '-                                                  EXHIBIT 2                  .

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lf-UNITED STATES OF AMERICA NUCLEAR-REGULATORY = COMMISSION ATOMIC SAFETY AND LICENSING BOARD:- Before the Administrative Judges:' ! Ivan W. Smith, Chairman Dr. Richard F. Cole y Kenneth A. McCollom

                                                                                 )

In-the Matter-of )' Docket Nos. 50-443-OL

                                                                                 )               50-444-OL PUBLIC SERVICE COMPANY                         )              (Off-Site EP)

OF NEW HAMPSHIRE, EI E. )

                    .                                                            )

(Seabrook Station, Units 1 and 2) ) June 21, 1989

                                                                                -)

REPLY OF.THE MASSACHUSETTS ATTORNEY GENERAL TO THE RESPONSES OF THE APPLICANTS AND STAFF TO THE MAY 31 MOTION TO HOLD OPEN THE RECORD On-May 31, 1989 the' Massachusetts-Attorney General (" Mass AG") filed a motion seeking to have this. Board.assart jurisdiction over any litigation that arises from low power terting and the September 1989 onsite exercise. The Mass.AG received the Applicants' response on June 12 and the Staff's response,.on June 16. The Mass AG submits this reply to those responsey?- I. APPLICANTE' RESPONSE A. The Motion In Not Premature The Applicants essert that the May 31 motion is premature because the relevant " contention-producing event (s]" (App. Response at 3) have not occurred (or at least in the case of b low power testing are not yet completed). , As a consequence, 1 1

i o i impression and in such circumstances, Congressional acquicacence in a past Commission practice is irrelevant.N' C. The Nant Onnite Erarelse With regard to the Mass AG's request for a hearing on the next onsite exercise, the Applicants appear to agree that that f exercise is material and relevant to a full power license. The Applicants, however, make two arguments for not permitting the Mass AG to litigate that exercise,

1. First, the Applicants assert that the onsite exercise is exempted from the hearing right granted by the Atomic Energy Act (*AEA") because it falls within the

        " inspections, tests or elections" exception set forth in the Administrative procedure Act ("ApA"). 5 U.S.C. $554(a)(3).             "

i App. Response at 6-8. In support of this assertion, the l Applicants cite one consideration discussed by the Court in ECS which purportedly distinguishes offsite exercises (which are not within the exception) from onsite exercises (which assertedly are): the fact that in reviewing an onsite exercise the NRC reviews reports of Staff observers and not " third parties." On this slim reed, the Applicants assert that onsite exercises are exempt from a public hearing. In response, the Mass AG notes the following:

a. The June 1988 onsite exercise which was part of the full participation exercise was litigable and the Applicants point out no distinction between it and the upcoming 1/ Technically, because it appears that no request for a hearing in these circumstances has ever been addressed before, there is-no past Commission practice to which Congress could be seen to have acquiesced.

                                         .s .

O l exercise. The Mass AG filed a contention alleging a fundamental flaw in the onsite plan based on the onsite exercise. This contention was admitted.

b. The Applicants ignore the whole thrust of the APA's exception and rather mechanically latch onto one purported distinction which they claim supports their position. The exception is designed for those types of determinations which do not lend themselves to the hearing process. Feldman v. State Board of Law Examinars, 438 F.2d 699, 703 n.6 (8th Cir. 1971). Eaa Door v. Donaldson, 195 r.2d 764 (D.C. Cir. 1952). Sam also_ Davis, Administrative Law,

                                                    $12.12 (2nd edition). Determinations that do not lend themselves to the hearing process are those based on " technical facts" that once established do not lend themselves to further dispute concerning their meaning or significance. pCE v. NRC at 1449 n.22 (citing Door v. Donaldson, supra.)     One of the key indicia of such determinations is a set of objective standards for the test or examination which are applied to the object or      !

activity being evaluated. Saa.Ranciano v. Herkimar, 605 F.2d 605, 611 n.6 (2d Cir. 1978) (examination of human body follows

                                                    " physicians' methods" and lawyers

• complicate the process").

Here, the onsite exercise, just likw thw offsite exercise, is reviewed against a set of objectives (the June 1988 onsite exercise had 35 such objectives) and a judgment made which by its very nature does lend itself to the hearing process. , Indeed, the QCE decision does not distinguish between onsite and offsite emergency exercises and no distinction between them which would have any meaning in light of the purpose of the l L_

. j ApA exception and the UCS Court's discussion of that exception is possible,

c. The Commission itself has identified no distinction between the onsite and offsite exercises that would support exceptional treatment of onsite exercises,

d. Finally, the Applicants ignore a critical distinction between the ApA exception to a hearing and the AEA's grant of a hearing to the public. The ApA's exception l permits an agency to take an action affecting the interests of a party without granting that party a hearing if and only if '

that action is based " solely on inspections, tests, or s elections.* The exception is an exception to a hearing right that runs to the earty whose interest in beino directiv affected. The hearing right under the Atomic Energy Act runs, however, not only to the Applicants but to the public. For this reason, it is not at all clear that the APA's exception was intended to limit public participation in licensing decisions even if the Applicants were more than willing to have the decision made based on an inspection or a test. . Inspections and tests are permissible substitutes for a hearing as far es the party directly affected by a decision based on them is concerned but are not necessarily satisfactory substitutes for public participation through a hearing in matters deemed material and relevant to nuclear reactor licensing. As the UCS Court noted: Administrators may not lightly sidestep procedures that involve the public in deciding important questions of public policy.... [W]e believe Congress vested in the public, as well as the

                                        - 7. -

     ..                                                                                                                        l NRC Staff, a role in assuring safe operation of nuclear power plants.

735 F.2d Ausn at 1446, 1447.

2. The Applicants also argue that the Mass AG ignores the fact that the upcoming onsite exercise will be the fourth such exercise at Seabrook. The Mass AG did ignore this j fact because it is irrelevant and Applicants offer nothing that would contradict this. As set forth at 7-8 of the May 31 1 motion, it is clear that within 1 year of the issuance of a full-power license an onsite szercise anat ha hald. Once held,  ;

i its results are material and relevant if they indicate that i

          ,   there is a fundamental flaw in the onsite plan.                                                                 ,

i II. STAFF RESPONSE i i A. Preliminary Innues 3

1. In a section of its response entitled Background (Staff's Response at 2), the Staff attempts to poison the well by asserting that the Mass AG l

L seeks to prevent completion of the full power f proceeding to give intervenors time to raise additional issues for litigation in the full power r proceeding which would substantially delay the completion of the proceeding.1/ l I/ Apparently, the Staff believes that the motives behind the Mass AG's May 31 motivu etw tulwvent to owwwwwing thw lwwel issues raised therein. For the record, the Mass AG does not ' consider the motives of the Applicants or the Staff as revealed by their responses to the motion relevant to an assessment of those responses. Nevertheless, for the sake of a complete record in this regard, the Mass AG believes that the NRC Staff ' is guided in this proceeding by its goal of licensing Seabrook , at the earliest possible moment notwithstanding the merits of * , any procedural or substantive legal issues raised at any time by the intervenors. To realize its goal, the NRC Staff has argued and will continue to argue for the interpretation of law and fact that in its view is most likely to result in the earliest possible licensing of Seabrook.

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