ML20149D853

Certification of Question to Commission Per Section 2.718(i).* in 871125 Memorandum & Order,Commission Lifted Stay of Low Power Operations & Ordered That ASLB Determine Whether Considering Issues Appropriate.Served on 880205

ML20149D853
Person / Time
Site:	Seabrook
Issue date:	02/05/1988
From:	Wolfe S Atomic Safety and Licensing Board Panel
To:
References
CON-#188-5533 88-558-01-OLR, 88-558-1-OLR, ALAB-303, ALAB-875, ALAB-883, CLI-87-13, OL-1-R, NUDOCS 8802100044
Download: ML20149D853 (3)

Text

($3 00LKETED V5NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'88 FEB -5 P3 :40 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: OFFICE Cf EicF.CiAri(

Sheldon J. Wolfe, Chairman 00CKETmG & SERvlCf.

BRANCH Emeth A. Luebke Jerry Harbour SERVED FEB o 5 ;9g

) Docket Nos. 50-443-OL-1-R In the Matter of 50-444-OL-1-R PUBLIC SERVICE COMPANY ) (On-Site Emergency Planning 0F NEW HAMPSHIRE, g al. ) and Safety Issues)

(ASLBP No. 88-558-01-OLR)

(Seabrook Station, Units 1 and 2)

February 5,1988 CERTIFICATION OF A QUESTION TO THE C0!HISSION PURSUANT T0 $2.718(i)

In affirming the Appeal Board's Decision of October 1,1987 (ALAB-875, 26 NRC __), in a Memorandum and Order issued on November 25, 1987 (CLI-87-13, 26 NRC ___), the Comission lifted its stay of low power In ALAB-875, inter alia, the Appeal Board affirwed in part and reversed and remanded in part this Board's Partial Initial Decision (LBP-10, 25 NRC 177 (1987)) wherein, having resolved all onsite safety and emergency planning issues, pursuant to 10 C.F.R. 50.47(d) and 50.57(c), we had authorized issuance of a license to operate Seabrook Station, Unit 1, up to 5% of rated power. On remand, the Appeal Board stated that this Board should admit for litigation two contentions which had been rejected in 1982 as issues in controversy -- NECNP Contention I.V. (concerned with inservice inspection of steam generator tubes) and NECNP Contention IV. (addressed to the accumulation of aquatic organisms and other foreign matter in cooling systems). The Appeal Board also stated that we shculd determine expeditiously the appropriateness authorization con ( @a nedrenewal pendente in our Partial lite of T5Ttial the low power Decision.

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1 operations and ordered that this Licensing Board "shall expeditiously determine whether considering the issues that it is hearing on remand, it is appropriate to renew at this time its authorization of low power or whether low power operations must await further decisions."

Having earlier admitted for litigation the two remanded contentions in an Order of October 16, 1987 (unpublished), we requested in the Order of November 27,1987 (unpublished) that the parties file responsive briefs to assist us in making the expeditious detennination directed by the Comission. The Applicants and New England Coalition on Nuclear Pollution filed briefs on January 4,1988 and the Staff filed its brief on January 12, 1988.

In a Memorandum and Order of February 3,1988, (ALAB-883, 27 NRC _), the Appeal Board granted two motions of the Attorney Gener31 of Massachusetts to reopen the evidentiary record in the onsite emergency planning and safety issues phase of this operating license proceeding and remanded to this Board for appropriate consideration and disposition the issue encompassed by the two contentions admitted by the Appeal Board, i.e. that no means have been established to provide the requisite early notification and clear instruction to Massachusetts residents within the EPZ. Citing the Statement of Consideration accompanying 10 C.F.R. 50.47(d), 47 Fed. Reg. 30,232(1982), the Appeal Board concluded that "...Seabrook low power operation is precluded unless and until the Applicants have submitted substitute public notification plans for the Massachusetts comunities within the EPZ that meet with Staff approval and, if challenged in an appropriate and timely manner by a n , ,-

l' party to the proceeding, those plans are then found by the Licensing Board, as well, to satisfy the governing Comission regulation."

(ALAB-883, slip op. at 23, 24).

We have been preparing and could issue within a short time our detemination, but we are in a quandary. On the one hand, in CLI-87-13, the Comission has directed this Board to expeditiously determine, in considering the issues that it is hearing on remand (the accumulation of aquatic organisms and other foreign matters in cooling systems, and inservice inspection of steam generator tubes), (1) whether it is appropriate to renew at this time its authorization of low power, or (2) whether low power operations must await further decisions. As a trial board, we are bound by the Comission's directive, and we are familiar with no legal system -- judicial or administrative -- which allows a lower tribunal to disregard the directives of a superior one.

Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1),ALAB-303,2NRC858,870(1975) On the other hand, in ALAB-883, the Appeal Board has effectively negated the two alternative determinations which the Comission has delegated to us to make.

Certified Question Should the Licensing Board proceed to make the detemination as directed by the Comission in CLI-87-13?

FOR THE ATOMIC SAFETY AND LICENSING BOARD b8AA k . d SheTc on J. Wgi fe,Chairpan ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 5th day of February, 1988.