ML20078B676
| ML20078B676 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/23/1983 |
| From: | Curran D HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20078B671 | List: |
| References | |
| NUDOCS 8309270195 | |
| Download: ML20078B676 (6) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
Public Service Company of New
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Hampshire, et al.
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Docket Nos.
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50-443, -444 (Seabrook Station, Units 1 and 2)
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)
NENCP REPLY TO RESPONSES BY APPLICANTS AND NRC STAFF TO NECNP CONTENTIONS ON NEW HAMPSHIRE EMERGENCY RESPONSE PROCEDURES Introduction The Applicants and Staff have objected to the admission of NECNP's contencions on the New Hampshire state emergency response procedures on the ground that contentions challenging implementing procedures for emergency plans are not litigable under the Appeal Board's decision in Louisiana Power & Licht Co. (Waterford Station, Unit 3), ALAB-732, June 29, 1983, slip op at 53-54.
Their reliance on Waterford is misplaced.
Because it applies to an operating license applicant's onsite implementing procedures and not to offsite procedures, the Waterford decision does not govern the litigability of contentions on the New Hampshire state plan implementing procedures.
Moreover, even if it were applicable to offsite procedures, the Waterford rationale is inconsistent with the 8309270195 830923 PDR ADOCK 05000443 0
. Atomic Energy Act and NRC rules of procedure, which require the
' Board to admit NECNP's contentions on the New Hampshire Emergency Response Procedures because they raise issues material to the question of whether there is reasonable assurance that adequate protective measures can and will be 4
taken at Seabrook in the event of a radiological emergency.
10 C.F.R. S 50.47(a)(1).
The Waterford decision is inapposite because it deals only with the admissibility of a licence applicant's onsite 4
emergency implementing procedures.
In Waterford, the Appeal Board relied upon 10 C.F.R Part 50, Appendix E Part V, which n
- sets a deadline-for the submission of onsite implementing procedures at 180 days before scheduled issuance of the operating license.
To the Appeal Board, the fact that the Commission'would allow the procedures to be submitted at such a late date was convincing evidence that the Commission "never intended the implementing procedures to be required for the reasonable assurance finding and thus to be prepared and subject to scrutiny during the hearing."
Id. at 53-54.
While i
conceding the dearth of administrative history on implementing procedures, the Appeal Board nevertheless concluded that the Commission _ "did not want licensing hearings to become bogged down with litigation about such details."
Id.
The Appeal Board sole reliance on the scheduling provision of Part V to Appendix E to divine the Commission's intent with s
- regard to the litigability of onsite implementing procedures is 1
~
. tenuous at best.
By no means can the decision be used as a springboard to justify the exclusion of contentions on offsite implementing procedures, to which Part V does not apply.
The Staff argues that "there is no reason to treat offsite implementing procedures in a different manner from onsite procedures."
The Staff is incorrect.
With regard to onsite planning, the NRC has the primary authority to determine what information is required to support a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
As the expert agency on onsite planning, the Commission arguably has the authority and the expertise to determine that an applicant's implementing procedures are not required for a reasonable assurance finding.
For offsite planning, however the Commission has explicitly designated FEMA as the expert agency, and it defers to FEMA for factual determinations on the
- Nonetheless, the Appeal Board erred in ruling that as a matter of law, a license applicant's implementing procedures are inappropriate subjects for licensing hearings.
Insofar as l
an applicant's implementing procedures demonstrate how a plan j
is to be implemented, they are highly relevant to the licensing dotermination of whether the plan "can and will" be implemented.
10 C.F.R. S 50.47(a)(1).
The Board has no authority to deny a statutorily mandated hearing on an issue material to the issuance of an operating license merely because the issue constitutes a " detail" or would be cumbersome to the hearing process.
See page 4-6, infra.
As discussed above, however, the Licensing Board need not rule on the correctness of.the Appeal Board's decision on litigability of onsite implementing procedures in order to admit NECNP's contentions on offsite procedures for the State of New Hampshire.
l j
. adequacy of offsite plans.
Under 10 C.F.R. S 50.47(a)(2), the NRC is to base its finding (of reasonable assurance] on a review
-of the Federal Emergency Management Agency (FEMA) findings and determinations as to whether State and local emergency plans are adequate and whether there is a reasonable assurance that they can be implemented.
Any materials,that FEMA deems necessary to its own reasonable assurance findings are therefore the proper subjects of licensing hearings.
FEMA has stated that it does review offsite implementing procedures in case where offsite plans themselves do not contain sufficient detail on how they are to be carried out.
Brian Cassidy, FEMA's Regional Counsel, has informed NECNP that at this preliminary stage, FEMA has not yet l
determined whether it will be required to review the State of I
l New Hampshire's implementing procedures.
If FEMA relies in its l
l evaluation of the New Hampshire plans on the implementing procedures, then NECNP is entitled to litigate the adequacy of those procedures.
Even. f FEMA does not elect to review the New Hampshire i
Emergency Response Procedures, intervenors are entitled to a hearing on contentions related to the procedures to the extent the the contentions raise issues of fact material to the question of whether there is a reascnable assurance that the plans can~and will be implemented.
Section 189(a)(1) of the Atomic Energy Act, 42 U.S.C.
S 2239(a)(1), requires that:
In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license.
the Commission shall grant a hearing upon
5 the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.
Under long-established precedent, the hearing must be adjudicatory, and subject to the provisions of the Administrative Procedure Act, 5 U.S.C. S 554.
Siegel v. Atomic Energy Commission, 400 F.2d 778, 785-786 (D.C. Cir. 1968).
See also 10 C.F.R. Part 2; Brooks v. Atomic Energy Commission, 476 F.2d 924 (D.C. Cir. 1973).
That hearing " presumably must embrace all relevant matters."
Siegel v. Atomic Energy Commission, 400 F.2d at 784.
Under sound principles of administrative law, an agency cannot deny a hearing given by statute unless the agency can show that the parties could gain nothing thereby, because they disputed none of the material facts upon which the agency's decision could rest.
Independent Bankers Association of Georgia v. Board of Governors of the Federal Reserve System, 516 F.2d 1206, 1220
'(D.C. Cir. 1975) (hearing denial overturned where petitioners had had no opportunity in rulemaking proceding to address particular issues bearing on ultimate agency decision).
See also, General Motors Corp. v. Federal Energy Regulatory Commssion, 656 F.2d 791, 798 (D.C. Cir. 1981) (hearing denial reversed with respect to issue on which material facts were in dispute); Public Service Company of New Hampshire v. Federal Energy Regulatory Commission, 600 F.2d 944, 155 (D.C. Cir.
1979) (hearing denial overturned).
. Thus, the Board may not deny NECNP a hearing on the adequacy of the New Hampshire emergency response procedures unless it can demonstrate conclusively that those procedures are not material to the issue of whether there is a " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
It cannot do this without deciding the merits of NECNP's claims, which is impossible at the contention admission stage of the proceeding.
The written emergency plans are only as good as the capabilty of the sponsoring governments to carry them out.
The details of who, what, where, how, and when an emergency plan is to be carried out are therefore highly relc';snt to the determination as to whether there is a reasoanble assurance that they can and will be implemented.
With respect to the contentions raised on the New Hampshire procedures, this information appears neither in the procedures nor the plan.
NECNP has the right under the Atomic Energy Act to litigate its absence from the planning scheme.
Respectfully submitted, A C-Diane Curran
~J William S. Jordan, III HARMON & WEISS 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006 (202) 833-9070 Dated Septemer 23, 1983
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