ML20147H895

Answer of Atty General Jm Shannon to Applicant Petition for Review of ALAB-883.* Petition for Review Should Be Denied. W/Certificate of Svc

ML20147H895
Person / Time
Site:	Seabrook
Issue date:	03/03/1988
From:	Jonas S MASSACHUSETTS, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
CON-#188-5770 ALAB-883, OL-1, NUDOCS 8803090102
Download: ML20147H895 (10)

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-UNITED STATES OF AMERICA ., _

'88 MR -4 P3 :i5 Before The?

, 4 NUCLEAR REGULATORY' COMMISSION QFFICE D' 3ECif T6Ay uGCXCI!N,4 sr_iej;cr' BRAM:H C ,

) : Docket:Nos. 50-443-OL-1 IN THE MATTER OF ) 50-444-OL-1

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'PUBLIC SERVICE COMPANY OF ) (On-Site Emergency NEW HAMPSHIR2, ET AL., ) Planning and Safety

) Issues)

(SEABROOK STATION, UNITS 1_and _?.), )

)

. ANSWER OF-ATTORNEY' GENERAL JAMES M. SHANNON TO APPLICANTS' PETITION FOR REVIEW OF ALAB-883 On February _3, 1988, the Atomic Safety and Licensing Appeal r Board ("Appeal Board") issued a Memorandum and Order granting

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two motions of the-Attorney General of Massachusetts ("Mass AG") 'to reopen' the record in the on-site emergency planning ' and safety issues phase.of the Seabrook operating license proceeding. The Appeal Board found that by virtue of the removal and dismantling of all of the emergency notification sirens in the Massachusetts portion of the EPZ, the Applicants no longer satisfied the 10 C.F.R. 550.47(b)(5) requirement enat means exists to provide early notification and clear instruction to the populace within the EPZ. ALAB-883. The Appeal' Board remanded the matter to the Licensing Board for further proceedings and ruled that a low-power license could L not issue until the remand was complete.

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4 dn February 18,31988, the Applicants petit'ioned the Commissi'on for1 review of ALAB-883. 'They argueithat- >

Massachusetts should be denied a hearing on the' siren issue

'before low-power operation. 1The Applicants claim that the; Appeal 1 Boar'd should- have estopped the state f rom: obtaining: a hearing'and'should have allowed low-power operation pending the outcome of any remand'.

Their estoppel argument is misguided, ignores the relevant facts.and misapprehends the applicable law. Moreover,_the Commission has already decided that'early notification issues must be treated and resolved in the on-site emergency planning and safety issues _ phase of the operating license proceeding.

Therefore, the Petition for Review.should be denied.

, 1. The' Appeal Board Acted Correctly By Rejecting The Estoppel-Argument.

The Applicants first presented their estoppel argument to the Appeal Board on January 25, 1988. Applicants' Answer To "Contention Of Attorney General James-M. Shannon On Notification System For Massachusetts And Motion To Admit Late-Filed Contention And Reopen The Record at 5-9. They argued that Massachusetts should be denied a hearing on the siren issue because:

I What the Commonwealth, its agencies, and l' political subdivisions have done to Seabrook L is indistinguishable from the action of a private individual who gaina access to a l nuclear plant and deliberately renders a i safety system inoperative. Id. at 6.

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The inaccuracies of that statement were pointed out and, as a result, the_ Applicants have evolved their estoppel argument.

into the.following: "[t]he Commonwealth and_its political subdivisions could legally have assured continued. validity of the siren' system in any number of ways .:. . .' Petition for.

Review at 5.

The argument is insubstantial and does not raise "an important question of policy," see 10 C.F.R. 2.786(b)(4)(1),

for several_ reasons. First, the argument is a transparent attempt to shift the Applicants' established burden in these proceedings to the Commonwealth. The Applicants bear the burden of demonstrating that they are entitled to an operating license. E.g., Consumers Power Co. (Midland Plant, Units 1 &

2), ALAB-315, 3 NRC 101 (1976). To meet that burden, they must persuade the Commission that they have met emergency planning standards. E.g., Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-22, 24 NRC 685, 690 (1986); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-697, 16 NRC 1265, 1271 (1982).

More parcicularly, the NRC and FEMA have explicitly imposed on the Applicants the burden of demonstrating an adequate early

( notification system. Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in l

Support of Nuclear Power Plants, NUREG-0654, FEMA-REP-1, Rev. 1 at 45 (November, 1980) and its draft analogue for utility ,

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plans, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (Criteria for Utility Off-site Planning and Preparedness Draft Report for Interim Use and Comment),

NUREG-0654, FEMA-REP-1, Rev. 1, Supp. 1 at 11 (November, 1982) state that "(i]t shall be the licensee's responsibility to demonstrate that such means exist, regardless of who implements this requirement." The former document emphasizes that "NRC and FEMA also recognize that the responsibility for demonstrating that such a system is in place rests with the facility licensee." NUREG-0654, FEMA-REP-1, Rev. 1 at 3-1.

The Appli. cants have not met their burden because their system cannot witnstand legal scrutiny. They should not be permitted to shift that burden by claiming that Massachusetts, in some unidentified manner, should excuse the system's legal deficiencies.

Second and as the Appeal Board found, see ALAB-883 at 11, '

the "factual ingredients" of an estoppel claim are absent. The sirens were removed (except for a single siren on the Salisbury Beach State Reservation) by six Massachusetts communities pursuant to votes of their Boards of Selectmen. The Commonwealth did not take those actions; municipalities, independent of the Commonwealth, did. As pointed out in the Supplemental Memorandum of the Mass AG,1! the Commonwealth 1/ Supplemental Memorandum Of Attorney General James M.

Shannon In Support Of Motion To Admit Late-Filed Contention And Reopen Tne Record (January 28, 1988).

and its municipalities are separate, largely independent entities under Massachusetts state law. The Applicants' attempt to equate the actions of the state with those of its political subdivisions is factually and legally wrong.

Third, the actions of the towns were justified, if not required. The United States Court of Appeals for the First Circuit found that the permits authorizing the erection and operation of the sirens had likely been issued ultra vires.

Public Service Co. of New Hampshire v. Town of West Newbury, No. 87-1395 (1st Cir. December 16, 1387). A private party cannot base aa estoppel on a government's invalid extension of a privilege to that private party. Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 61-63 (1987).

Finally, the Applicants sent letters to the Massachusetts towns representing that "[w]e will not be including the Massachusetts siren system in any documentation to the Nuclear Regulatory Commission by the Federal Emergency Management Agency involving the licensing of Seabrook Station." ALAB-883 at 8. In abandoning their siren system, the Applicants themselves apparently have recognized the legality of the actions taken by the Massachusetts towns.

2. The Commission Has Already Decided To Resolve Public Notification Issues In Low-Power Proceedings.

Effective July 13, 1982, the Commission amended its emergency planning regulations to allow the issuance of zero an'd low-power licenses with'out NRC or FEMA. findings on the

adequacytof off-site emergency response' plans

.statednthat The Commission its "review of the licensees' on-site response mechanism.would necessarily include aspects of some off-site elements."

47 Fed. Reg. 30232 (July 13, 1982). Among.the elements specifically mentioned by the Commission was c~

publi notification under 10 C.F.R. S50.47(b)(5). Id. An issue raised by public comments on the proposed rule was that .

c publi knowledge of a lack of off-site protection could cause aos ch in the event of an incident during. low-power testing The .

Commission responded that prior to issuing a low-powe r license it would review elements of the off-site emergency plan including the public notification system required b y 10 C.F.R.

S50.47(b)(5). Id. at 30234. The conclusion is inescapable that the Commission has already determined that certain off-site elements of emergency response plans, like the public notification system, must be litigated and resolved prior to the issuance of any operating license, including a l ow-power license.

Public confidence in the adequacy of protective measures available during low-power testing would be severly undermined if that testing were permitted to proceed before the public notification system was installed and found adequate in the licensing proceedings.

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CONCLUSION For. alli he t

foregoing reasons, the' Petition-for Review-shot;1'd - be denied.-

~ JAMES:M. SHANNON ATTORNEY: GENERAL-COMMONWEALTH OF MASSACHUSETTS

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Stephen A.Aonas Assistant Attorney General

~ Deputy Chief

- Public~ Protection Bureau One Ashburton Place Boston, MA:02108 ,

(617) 727-4878 AATED: March-3, 1988 9

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UNITED STATES OF AMERICA DOCKETED U$NRC Before The NUCLEAR REGULATORY COMMISSION '88 MR -4 P3 :15 0FFICE Cf SEChf.lAsY 00CKEiiNG A SE9vici,

) BRANCH IN THE MATTER OF ) Docket Nos. 50-443-OL-1

) 50-444-OL-1 PUBLIC SERVICE COMPANY OF )

NEW HAMPSHIRE, ET AL. ) (On-Site Emergency (SEABROOK STATION, UNITS 1 and 2) , ) Planning and Safety

) Issues)

CERTIFICATE OF SERVICE I, Stephen A. Jonas, Assistant Attorney General, hereby certify that on March 3, 1988, I made service of the within Answer Of Attorney General James M. Shannon To Applicants' Petition For Review Of ALAB-883, by mailing copies thereof, postage prepaid, by first class mail to, or by Federal Express to those individuals as indicated by *:

• Lando W. Zech, Jr. , Chairman

• Frederick M. Bernthal Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

• Kenneth M. Carr

• Docketing Service Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Alan S. Rosenthal, Chariman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555

• Kenneth C. Rogers

• Thomas M. Roberts Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

)

a - 1 Thomas S. Moore Mr. Ed Thomas Atomic Safety.and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S. Nuclear Regulatory Office and Courthouse Commission. Boston, MA 02109 Washington, DC 20555-Robert-Carrigg, Chairman Administrative Judge- Board of Selectmen Sheldon J. Wolfe, Esq.,-Chairman Town Office Atomic Safety and Licensing Atlantic Avenue Board Panel North Hampton, NH 03862 U.S. Nuclear Regulatory Commission Diane Curran, Esq.

Washington, DC 20555 Andrea C. Ferster, Esq.

Harmon & Weiss

' Judge Emmeth A. Luebke Suite 430 Atomic Safety and Licensing 2001 S Street, N.W.

Board Panel Washington, DC 20009 550 Friendship Boulevard Apartment 1923N Stephen E. Merrill, Esq.

Chevy Chase, MD 20815 Attorney General George Dana Bisbee, Esq.

Dr. Jerry Harbour Assistant Attorney General Atomic Safety and Licensing Office of the Attorney General Board Panel 25 Capitol Street U.S. Nuclear Regulatory Concord, NH 03301-6397 Commission Washington, DC-20535 Sherwin E. Turk, Esq.

Office of the Executive Legal Atomic Safety and Licensing Director Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Robert A. Backus, Esq.

Backus, Meyer & Solomon Atomic Safety and Licensing 116 Lowell Street Appeal Board Panel P.O. Box 516 U.S. Nuclear Regulatory Manchester, NH 03105 Commission Washington, DC 20555 Mr. J. P. Nadeau Selectmen's Office Philip Ahrens, Esq. 10 Central Road Assistant Attorney General Rye, NH 03870 Department of the Attorney General Mrs. Sandra Gavutis Augusta, ME 04333 Chairman, Board of Selectmen RFD 1 - Box 1154 Paul McEachern, Esq. Kensington, NH 03827 Matthew T. Brock, Esq.

Shaines & McEachern Senator Gordon J. Humphrey 25 Maplewood Avenue U.S. Senate P.O. Box 360 Washington, DC 20510 Portsmouth, NH 03801 Attention: Tom Burack

,(* .y-Senator Gordon J. Humphrey Mr. Angie Machiros One Eagle. Square, Suite.507- Chairman, Board'of Selectmen Concord, NH:03301. . Town of Newbury

, Attention: Herb Boynton Newbury, MA 01950~

Mr. Thomas F. Powers,-III Mr. Peter S. .Matthews Town Manager Mayor, City of Newburyport Town of ExeL;r City Hall 10 Front Street Newburyport, MA 01950 Exeter, NH 03833 Mr. William S. Lord H. .Toseph Fl ynn, Esq.. Board of Selectmen Office of General. Counsel Town Hall - Friend Street Federal Emergency Management Amesbury, MA 01913 Agency 500 C Street, S.W. Brentwood Board of Selectmen Washington, DC 20472 RFD Dalton Road Brentwood, NH 03833 Gary W. Holmes, Esq.

Holmes.& Ells Richard A. Hampe, Esq.

47 Winnacunnet Road Hampe and McNicholas Hampton, NH 03841 35 Pleasant Street

' Concord, NH 03301 Judith H. Mizner, Esq.

Silv^.rglate, Gertner, Baker Charles P. Graham, Esq.

Fine, Good & Mizner McKay, Murphy and Graham 88 Broad Street 100 Main Street Boston, MA 02110 Amesbury, MA 01913 Mr. Calvin A. Canney Thomas G. Dignan, Esq.

City Manager George H. Lewald, Esq.

City Hall Ropes & Gray 126 Daniel Street 225 Franklin Street Portsmouth, NH 03801 Boston, MA 02110

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St6p' Ken A. JoyEs Assistant Attorney General Deputy Chief Public Protection Bureau One Ashburton Place Boston, MA 02108 (617) 727-4878 DATED: March 3, 1988