ML20150C643

NRC Staff Response to New England Coalition on Nuclear Pollution (Necnp) Motion to Defer Briefing of Necnp Appeal of Renewal of Low Power Authorization.* Necnp Motion Should Be Denied & Brief Filed.Certificate of Svc Encl

ML20150C643
Person / Time
Site:	Seabrook
Issue date:	03/16/1988
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5854 OL-1, NUDOCS 8803210127
Download: ML20150C643 (14)

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of 1

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY Oc ) 50-444 OL-01 NEW HAMPSHIRE, g g. ) On-site Emergency Planning

) and Safety issues ,

(Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO NECNP MOTION TO DEFER BRIEFING OF NECNP'S APPEAL OF RENEWAL OF LOW POWER AUTHORIZATION ,

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i Gregory Alan Berry Counsel for NRC Staff March 16,1988 i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY Oc ) 50-444 OL-01 NEW HAMPSHIRE, et al. ) On-site Emergency Planning

) and Safety issues (Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO NECNP MO? TON TO DEFER BRIEFING OF NECNP'S APT :AL OF RENEWAL OF LOW POWER AUTHORIZATION Gregory Alan Berry Counsel for NRC Staff March 16,1988

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UNITED STATES OF AMERICA NUCLEAR ~ REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

. ) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW HAMPSHIRE, et al.

) On-site Emergency Planning

) and Safety issues (Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO NECNP MOTION TO DEFER BRIEFING OF NECNP'S APPEAL OF RENEWAL OF LOW POWER AUTHORIZATION INTRODUCTION On March 3, 1988, the New England Coalition On Nuclear Pollution (NECNP) filed a "Motion To Defer Briefing Of NECNP's Appeal Of Renewal Of Low Power Authorization," in which it requests the Appeal Board to defer briefing on NECNP's appeal of the Licensing Board's February 17, 1988 Memorandum and Order O until after all other issues involved in the on-site remand proceeding have been resolved. Motion at 3. The Staff opposes NECNP's motion. The issues involved in NECNP's appeal of the February 17, 1988 Order are legal in nature and narrow in scope, and will not require significant amounts of time or resources to address and resolve. N E CN P's motion should be denied and NECNP should be 1/ Memorandum and Order (Renewal of Low Power Authorization; Denying NECNP's Motion For Leave To File A Reply) (February 17, 1988) (hereinafter "February 17,1988 Order").

required to file its brief in accordance with the time periods set forth in 10 C.F.R. 6 2.762.

BACKGROUND In Public Service Company of New Hampshire (Seabrook S tation ,

Units 1 and 2), A LA B-875, 26 NRC (October 1, 1987) the Appeal Board reversed the Licensing Board's determination that NECNP Contentions I.V and IV failed to satisfy the requirements governing admission of contentions and directed the Board to reopen the on-site evidentiary record and admit Contentions I .V (relating to inservice inspection of steam generator tubes) and IV (relating to blockage of cooling systems as a result of the accumulation of aquatic organisms and debris) for litigation. See A LA B-875, supra, slip op. at 15, 19, 48.

Noting that low power operations had been stayed by the Commission for reasons "extraneous to anything the Licensing Board will be looking at on the remand," id., slip op at 48-49, the Appeal Board did not address in ALAB-875 "the extent, if any, to which the remanded issues are relevant to low-power Seabrook operation." Id., slip op. at 48. The Appeal Board therefore stated that if the Commission lifted its stay prior to the resolution of the remanded issues the Licensing Board was "to determine expeditiously the appropriateness of a renewal pendente lite of the low-power authorization contained in [LBP-87-10]." M. , slip op. at 49.

The Commission lifted its stay of low power operations on November 25, 1987. See Pub!!c Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-13, 26 NRC (November 25, 1987). In CLi-87-13, the Commission also affirmed the Appeal Board's directive that the Licensing Board "expeditiously determine whether considering the

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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." Id. , slip op at 7.

On November 27, 1988, the Licensing Board issued an order directing the parties to address whether reauthorization of low power operations must await resolution of those two contentions remanded by the Appeal Board. Memorandum and Order (Establishing Briefing Schedule)

(November 27, 1987) (unpublished). NECNP and Applicants filed their briefs on January 4, 1988, the Staff filed its brief on January 12, 1988.

In an order issued on February 17, 1988, the Board rejected NECNP's argumenta that neither the Board nor the Commission had the legal authority to authorize low power operations prior to the ccmpletion of full power operating license proceeding. Id. at 11-14. The Board agreed with the Staff and Applicants that neither NECNP Contention I.V or NECNP Contention IV were relevant to low power operations "inasmuch as the safety concerns raised therein would not adversely impact upon the public health and safety if Seabrook, Unit 1, were to be authorized to operate only up to 5% of rated power." February 17, 1988 Order, at 18.

On March 3, 1988, NECNP filed a notice of appeal of the February 17, 1988 Order and the instant motion to defer briefing of the appeal until all other issues involved in the remand proceeding are resolved.

DISCUSSION NECNP's Motion To Defer Briefing Should Be Denied in ALAR-875, the Appeal Board indicated that if the Licensing Board determined that the pendency of Contentions I.V and V did not prevent 4

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the issuance of a low-power license, such a determination was to be expeditiously appealed:

If that question [whether low power operations should be

, reauthorized pendente lite] is answered in the affirmative, the order shall not become effective for a period of ten days following the date of its service to enable any dissatisfied party

. to seek appellate relief.

A LA B-875 , supra, siip op, at 50. Appellate review of the February 17, 1988 Order at this time is consistent with the procedure established by the Appeal Board. NENCP should not be permitted to defer appellate review unless it makes an affirmative showing that it will be prejudiced if the February 17, 1988 Order is reviewed prior to the completion of the remand proceeding. NECNP has not and cannot make this showing.

The ultimate issue resolved by the February 17, 1988 Order was legal, rather than factual, in natura. As the Staff noted in its brief 2,/ .

pursuant to 10 C.F.R. 6 50.57(c), a low power license may be authorized by a licensing board pendente lite where no pending contention is l "relevant to activity to be authorized." Relying upon Long Island Lighting Company (Shoreham Nuclear Power Station, Unli 1), C LI-84-21, 20 NRC 1437, 1439 (1986) and Commonwealth Edison Company (Braidwood Nuclear Generating Station, Units 1 and 2), LB P-86-31, 24 NRC 451, 453-54 (1986), the Staff pointed out that the test of "relevance" is not whether the contention relates to the conduct of the proposed activity, but rather whether it poses an issue relating to the safe operation of the proposed activity.

2,/ NRC Staff Response To Licensing Board Order Of November 27, 1987

! at 2-7 (January 12, 1988),

i e

Both the Staff and Applicants presented affidavits from experts which demonstrated that neither of the contentions remanded to the Board was relevant to the activity sought to be authorized. NECNP, on the other hand, did not present any affidavits or other information demonstrating that the remanded contention were relevant to the safe conduct of low power operations. I n stead , as noted a bove , NECNP reiterated the argument (rejected on prior occasions by the Appeal Board) that the Commission lacked legal authority to authorize a low power license prior to the completion of the full power licensing proceeding, in view of the foregoing, any appeal taken by NECNP necessarily will be limited in scope. The Appeal Board does not entertain arguments which were not raised below Y, and thus the only issues which NECNP properly can raise on appeal are (1) whether the facts set forth in the affidavits presented by the Staff and Applicants (which were not contradicted by NECNP) support the Board's conclusion that neither of the remanded contentions is relevant to the low power activities sought to be reauthorized; and (2) whether the Atomic Energy Act precludes the Commission and its adjudicatory tribunals from authorizing low power operations prior to the completion of full power operations. "- As the 3/

~ E.l. Puerto Rico Electric Power Company (North Coast Nuclear Power Plant, Unit 1), A LA B-64 8, 23 NRC 34, 37 (1981); see also Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), A LA B-882, 27 NRC , slip op. at 9, n.14 (January 8, 1988).

4/ Arguments addressed to this latter issue should be rejected summarily. See e. ., A LA B-875, supra, slip op, at 5; Public Service Company o ew Hampshire (Seabrook Station, Units 1 and (FOOTNOTE CONTINUED ON NEXT PAGE) 1

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Appeal Board recognized implicitly in ALAB-875, the issues that would be posed by NECNP's appeal are amenable to immediate appellate review; the correctness, vel non, of the Board's February 17, 1988 Order is not dependent upon the completion of the remand proceeding. See also Appeal Board Order of February 10, 1988 at 7. As shown above, the issues are narrow and uncomplicated, and thus do not require the parties to expend substantial resources or amounts of time to address them.

NECNP also suggests that no party will be prejudiced by deferring appellate review of the February 17, 1988 Order pending the resolution of other matters involved in the remand proceeding. Motion at 3. The Staff does not agree. Applicants, of course, have a substantial interest in securing a low power operating license for the Seabrook Station. More important, the public interest is not served by unnecessarily delaying licensing actions. See CLl-81-8,13 NRC 452, 453 (1981). That NECNP's appeal of the February 17, 1988 Order might turn out to be the only obstacle to the issuance of that license is an additional and weighty reason to act upon NECNP's appeal expeditiously.

NECNP points out that in ALAB-883 the Appeal Board precluded the issuance of a low power license pending the completion of litigation with respect to the Massachusetts Attorrney General's late-filed contention which challenged Applicants' compliance with 10 C.F.R. 5 50.47(b)(5).

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), A LA B-883, 27 NRC , slip op. at 24 (February 3, 1988). This decision flowed from the Appeal Board's conclusion that compliance with 10 C.F.R. 6 50.47(b)(5) was an "absolute precondition" to the authorization of low power operations. Id. , sllp op, at 21-23. Applicants, however,

dispute this conclusion and have petitioned the Commission for review of A LA B-883. See Applicants' Petition For Review Of ALAB-883 at 5-7 (February 18, 1988). If Applicants were to prevall, ALAB-883 would no longer pose a bar to the issuance of a low power license prior to the completion of the remand proceedings.

Similarly, the fact that the Appeal Board has yet to determine whether NECNP Contention I.V.B (relating to the environmental qualification of RG-58 coaxial cable) should be remanded to the Board for further litigation is not reason to cefer action on NECNP's instant appeal, in the first place, the Appeal Board could well agree with the Licensing that the evidentiary record establishes the environmental qualification of the RG-58 cable and thus affirm the Board's conclusion to this effect in L B P-87-10. As directed by the Appeal Board in ALAB-882, the Licensing Board recently issued a memorandum In which it explained why RG-58 cable was env'ronmentally qualified to meet its intended function. See Memorandum To Aopeal Board On Environmental Qualification Of Coaxial Cable RG-58 (March 2,1988) (unpublished). b Second, even if the contention were remanded, that would not in itself bar the authorization of low power operations. Rather, the Board once again would be called upon to determine whether the contention was relevant to the activities sought to be authorized. if it is relevant, low power operations will not be permitted to commence. Thus, the 5/

In an unpublished order issued on March 3, 1988, the Appeal Board directed NECNP to file its response, if any, to the Board's March 2, 1988 Memorandum by March 22, 1988. The Staff and Applicants were directed to respond to any NECNP filing by April 8, 1988.

4 possibility that the environmental qualification contention may be remanded for further action has no bearing on the narrow issue presented by NECNP's appeal: whether the Board concluded correctly that NECNP Contentions I .V and IV do not raise any issue relevant to the safe

- conduct of low power operations.

CONCLUSION For the reasons stated in this Response, NECNP's motion to defer briefing of its appeal from the Board's February 17, 1988 Order should be denied.

sl pectfully submitted, i

Gr(egorIan lAN Berry Counse or PLRC Staff l

Dated at Rockville, Maryland this 16th day of March 1988

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00LKETED UiNEC UNITED RTATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'88 MR 18 M1:26 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL AQARD, m u. . .

SE M I 00CKE WN ^CH i;E A in the Matter of )

. ) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW HAMPSHIRE, g al. ) On-site Emergency Planning

) and Safety issues (Seabrook Station, Units 1 and 2 )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO NECNP MOTION TO DEFER BRIEFING OF NECNP'S APPEAL OF RENEWAL OF LOW POWER AUTHORIZATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's Internal mall system, this 16th day of March 1988.

Sheldon J. Wolfe, Esq. , Chairman

• Atomic Safety and Licensing Administrative Judge Board

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour

• Docketing and Service Section*

Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Emmeth A. Luebke Thomas G. Dignan, Jr. , Esq.

Administrative Judge Robert K. Cad,111, Esq.

5500 Friendship Boulevard Ropes 6 Gray Apartment 1923N 225 Franklin Street Chevy Chase, Maryland 20815 Boston, MA 02110 Atomic Safety and Licensing H. J. Flynn, Esq.

Appeal Panel

• Assistant General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Agency Washington, DC 20555 500 C Street, SW Washington, DC 20472 I

4 Philip Ahren, Esq. Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, NH 03801 Augusta, ME 04333 Mr. Angle Machiros, Chairman Carol S. Sneider, Esq. Board of Selectmen Assistant Attorney General 25 High Road Office of the Attorney General Newbury, MA 09150 One Ashburton Place,19th Floor Boston, MA 02108 George Dana Bisbee, Esq. Allen Lampert Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood 25 Capitol Street 20 Franklin Concord, NH 03301 Exeter, NH 03833 Ellyn R. Welss, Esq. William Armstrong Diane Curran, Esq. Civil Defense Director Harmon & Weiss Town oF Exeter 2001 S Street, NW 10 Front Street Suite 430 Exeter, NH 03833 Washington, DC 20009 Robert A. Backus, Esq. Gary W. Holmes, Esq.

Backus, Meyer & Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road Manchester, NH 03106 Hampton, NH 03842 Paul McEachern, Esq. J. P. Nadeau Matthew T. Brock, Esq. Board of Selectmen i

Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, NH 03801 Judith H. Mizner, Esq.

Charles P. Graham, Esq. Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine & Good 100 Main Street 88 Board Street Amesbury, MA 01913 Boston, MA 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen RFD #1, Box 1154 Town Office Kensington, NH 03827 Atlantic Avenue North Hampton, NH 03870

i William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 Amesbury, MA 01913 Mrs. Anne E. Goodmar,, Chairman Michael Santosuosso, Chairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 Hon. Gordon J. Humphrey United States Senate 531 Hart Senate Office Building Washington, DC 20510 Of

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