ML20054C667
| ML20054C667 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/15/1982 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8204210480 | |
| Download: ML20054C667 (9) | |
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' i!G UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos.
-443-OL NEW HAMPSHIRE, et al.
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(Seabrook Station, Units 1 and 2)
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APRggggy[t RESPONSE OF APPLICANTS
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TO THE CONTENTIONS FILED g
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BY SEACOAST ANTI-POLLUTION LEAGUE
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On March 12, 1982, the Board issued a Memorandum and 0rder Setting Special Prehearing Conference (" Order").
The Order required the filing of amended petitions by April 6, 1982.
On April 5, 1982, Seacoast. Anti-Pollution League ("SAPL") submitted a document entitled " Response of Intervenor Seacoast Anti-Pollution League to Memorandum and Order Setting Special Pre-Hearing Conference" ("SAPL Supp.").
Therein, inter alia, while
" reserving to itself the right to amend this statement of conten I tions",* SAPL set out four contentions it seeks to have admitted
- But see Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), LBP-80-30, 12 NRC 683, 689-90 (1980).
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8204210480 820415 PDR ADOCK 05000443 G
P' to litigation in this proceeding.
As contemplated by the Order, the Applicants hereby respond to, and set out their position with respect to the admissibility of, each of SAPL's contentions.
Contention No. 1 SAPL's first contention is stated thus:
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" Emergency planning cannot reasonably assure that public health and safety will be protected at the Seabrook site."
SAPL 3
Supp. at 4.
The major basis for this contention is stated as being that:
no determination has ever been made that the Seabrook facility can be evacuated in time to avoid adverse effects from radiation in the event of a major accident. "
Id.
Applicants readily concede that the subject of emergency planning is one which is a fit candidate for exploration in this operating license proceeding.
However, SAPL's contention, as framed, has a number of infirmities which preclude its admission as the emergency planning contention.
To begin with, as framed, the contention assumes that emer-gency planning is the only thing that works to provide reasonable assurance that the public health and safety will not be endan-gered.
See 10 CFR S 50.57(a)(3).
This is not so.
A number of regulatory requirements, if adhered to, together provide that assurance.
For example, such assurance is grounded in part l
upon conformance to the siting criteria in 10 CFR 100, confor-mance to the GDC, 10 CFR 50, App.
A, and inclusion of engineered safeguards such as an ECCS, 10 CFR S 50.46; 10 CFR 50 App.
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i This is not to say that emergency planning does not also make a contribution to the overall reasonable assurance, but it is not the only support therefor.
Second, as framed, the contention only attacks emergency planning "at the site" and the basis refers to evacuation of "the Seabrook facility".
It is difficult to believe that SAPL means this as written because the " reasonable assurance" of protection of the "public health and safety" requirement has nothing to do with employees on the site and in the plant.
Their protection is found in other parts of the regulations.
Thus, if SAPL means to raise only the evacuation of the plant and emer-gency planning only at the site, the contention references the wrong regulation.
If SAPL means to raise the issue of emergency planning in its broad sense beyond site boundaries, the conten-tion must be recast to do so.
l Third, from the statement of basis, the contention appears j
to be premised upon the concept that the regulations require a demonstration that evacuation can be accomplished within a cer-tain time frame.
This simply is not the law.
Public Service l
l Company of New Hampshire (Seabrook Station, Units 1 & 2), DD l 14, 14 NRC 279, 282-83 (1981); NRC Brief in Seacoast Anti-i Pollution League v. U.S. Nuclear Regulatory Commission, No. 81-(
2146 (D.C. Cir.) at 45-46.
Finally, the contention seeks to frame the evacuation issue in terms of the penultimate " reasonable assurance" finding.
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9 This is inappropriate.
Emergency planning is now governed by l
specific regulations.
10 CFR S 50.34(b)(5)(v); 10 CFR S 50.47; 10 CFR 50 App. E.
It is settled law that an applicant meets its l
burden in an operating license hearing when it demonstrates com-pliance.with the regulations; no amorphous additions can be required in the name of additional safety.
Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003 (1973).
In light of all the foregoing, the Applicants' position is that SAPL Contention No. 1, as framed, should be rejected.
i If an emergency planning contention is admitted, it should be:
"The applicants have failed to comply with the applicable provisions of 10 CFR 50.47 and 10 CFR 50 App.
E."
Contention No. 2 SAPL's second contention is stated thus:
"The operation of the proposed condenser cooling system will have an unreasonable adverse effect on the quality of the aquatic environment."
SAPL Supp. at 4.
In recognition of the fact that collateral estoppel would otherwise operate (see discussion of Contention No. 3, infra) l on this issue, SAPL, while acknowledging that the effect of the operation of the condenser cooling system has been extensively litigated to a conclusion at the construction permit hearing, relies upon the Applicants' present consideration of substituting chlorination for back-flushing to control fouling in the intake tunnel as grounds for reopening the aquatic effects issue..
Id. at 4-5.
However, the issue of what the effects will be, and the appropriateness, of a nuclear power plant's condenser cooling system is exclusively one for EPA to decide.
Consolidated Edison Co. (Indian Point Unit No. 2), CLI-81-7, 13 NRC 448, 449 (1981); Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-1, 7 URC 1 (1978), affirmed generally and as to this point sub nom. New England Coalition on Nuclear Pollu-tion v. NRC, 582 F.2d 87 (1st Cir. 1978).
When, as and if EPA approves additional use of chlorine in the system,* the enviren-mental effects, if any, of that decision will be factored into the cost / benefit analysis for this proceeding.
Thus, if a conten-tion is to be admitted as to this matter, it should be:
"If EPA and other appropriate authorities approve chlorination to control fouling in the intake tunnel, the adverse effects of such activity will be sufficient to tip the cost / benefit analysis against the allowance of operation of the plant. "
The contention, as framed at present, should not be admitted.
Contention No. 3 SAPL Contention No. 3 is:
"The operation of the proposed nuclear plant will have an unreasonable adverse effect upon the economic well-being of the seacoast area."
SAPL Supp. at 5.
The apparent basis of the contention is the theory that the existence of the Seabrook plant will cause anxiety in the public
- The use of some chlorine to control fouling from the pumphouse to the condenser and in the service water system has already been approved at the CP stage.
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at large and thus reduce tourism in the area.
Id.
This conten-tion was raised by SAPL at the Seabrook construction permit hear-l ing, was fully litigated, and decided adversely to SAPL.
Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2),
LBP-76-26, 3 NRC 857, 881-82 (1976).
"[A]n operating license proceeding should not be utilized to rehash issues already f
ventilated and resolved at the construction permit stage."
l Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2),
j CLI-74-12, 7 AEC 203 (1974).
SAPL alleges no significant inter-vening change in circumstances which would provide a basis for relitigating this issue.
Such being the case, classic principles i
of collateral estoppel apply.
See Houston Lighting and Power Co.
(South Texas Project, Units 1 & 2), LBP-79-87, 10 NRC 563 (1979),
affirmed summarily, ALAB-575, 11 NRC 14 (1980).
The contention should be excluded.
Contention No. 4 SAPL's Contention No. 4 is:
1 "The decommissioning of the Seabrook plant, should it receive its operating permit and actually operate, will have a major long-l term negative impact on the health and well-being of the citizens in the area of the facility."
SAPL Supp. at 5.
The major basis for this contention is alleged to be that j
if the plant is not fully removed, it will have a long-term i
negative effect on the area.
Id. at 6.
This same issue was fully litigated to a conclusion adverse 4
to SAPL in the construction permit proceeding.
Public Service - _. _ _
J Company of New Hampshire (Seabrook Station, Units 1 & 2), LBP-76-26, 3 NRC 857, 884 (1976).
On the sama reasoning set forth above with respect to Contention No. 3, Contention No. 4 should also be excluded.
In addition, as an additional part of its basis, SAPL contends that there is no assurance that the Applicants have the financial capability to decommission the plant.
SAPL Supp. at 6.
Finan-cial qualification of Applicants have been completely eliminated as an issue in operating license proceedings for electric utili-ties such as these applicants.
10 CFR SS 50.33(f)(1), 50.40(b) as amended by 47 Fed. Reg. 13750 (March 31, 1982).
CONCLUSION SAPL Contentions 3 and 4 should be excluded.
SAPL Conten-tions 1 and 2 as framed should be excluded although the Appli-cants concede that properly framed contentions with respect to these subject matters would be admissible.
Respectfully submitted, Thomas G. Dignan, Jr.
R. K. Gad III Ropes & Gray Thomas G.
Dignan, Jr.
R. K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 April 15, 1982 e
0 CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the applicants herein, hereby certify that on April 15, 1982, I made service of the within document by mailing copies thereof, postage prepaid, to:
Robert A. Backus, Esquire Mr. Arnie Wight, Chairman 116 Lowell Street House Science and Technology P.O. Box 516 Committee Manchester, NH 03105 House of Representatives Concord, NH 03301 Mr. Tomlin P.
Kendrick Executive Director E. Tupper Kinder, Esquire Coastal Chamber of Commerce Assistant Attorney General of New Hanpshire Office of the Attorney General 822 Lafayette Road 208 State House Annex P.O.
Box 596 Concord, NH 03301 Hampton, "H 03842 Mr. Robert F.
Preston Paul A.
Fritzsche, Esquire 226 Winnacunnet Road General Counsel Hampton, NH 03842 Public Advocate State House Station 112 Wilfred L.
Sanders, Jr., Esquire Augusta, ME 0h333 Sanders and McDermott Professional Association Philip Ahrens, Escuire 408 Lafayette Road Assistant Attorney General Hampton, NH 03842 Department of the Attorney General Roy P.
Lessy, Jr., Esquire Augusta, ME 04333 Office of the Executive Legal Director Jo Ann Shotwell, Esquire U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C.
20555 Environmental Protection Division Public Protection Bureau
' Atomic Safety and Licensing Department of the Attorney General Board Panel Cne Ashburton Place, 19th Floor U.S. Nuclear Regulatory Commission Boston,.:A 02103 Washington, D.C.
20555 William S.
Jordan, III, Esquire Atomic Safety and Licensing Appeal Harmon & Weiss Board Panel 1725 I Street, N.W.
U.S. Nuclear Regulatory Commission Suite 506 Washington, D.C.
20555 Washington, D.C.
20C06
8 Donald L. Herzberg, M.D.
Ms. Patti Jacobson 3eorge Margolis, M.D.
3 Orange Street Hitchcock Hospital Newburyport, MA 01950 Hanover, NH 03755 Edward J. McDermott, Esquire Sanders and McDermott Professional Association 408 Lafayette Road Hampton, NH 03842 Robert L.
Chiesa, Esquire Wadleigh, Starr, Peters, Dunn & Kohls 95 Market Street
.4anchester, NH 03101 Rep. Nicholas J. C'ostello
'.'hitehall Road Amesbury, MA 01913 Cooperative F. embers for Responsible Investment Ecx 65 Plymouth, NH 03264 Helen Hoyt, Chairperson Atomic Safety and Licensing Board Panel
..S.
"uclear Regulatory Commission Washington, D.C.
20555 Dr. Emmeth A.
Luebke Atomic Safety and Licensing Board Panel L.S. Nuclear Regulatory Commission Washington, D.C.
<0555 Dr. Oscar H.
Paris Atomic Safety and Licensing Board Panel L.S.
Nuclear Regulatory Commission
.:ashington, D.C.
20555 Thomas G.
Dignan. Jr.
Thomas G.
Dignan, Jr.