ML20151F081
| ML20151F081 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/07/1988 |
| From: | Curren D, Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6062 OL-1, NUDOCS 8804180067 | |
| Download: ML20151F081 (26) | |
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April 7, 1988 USN;C UNITED STATES NUCLEAR REGULATORY COMMISSION 18 AR 12 N038 ;
BEFORE THE ATOMIC SAciTY AND LICENSING APPEAL BOARD
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In the Matter of
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l Public Service Company of
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New Hampshire, et al.
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Docket Nos. 50-443 OL-1
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50-444 OL-1 (Seabrook Station, Units 1 & 2)
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ONSITE EMERGENCY
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PLANNING & TECHNICAL
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ISSUES NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S-BRIEF IN SUPPORT OF APPEAL OF MEMORANDUM AND ORDER i
RENEWINO AUTHORIZATION TO OPERATE AT LOW POWER i
Introduction On February 17, 1988, the onsite Atomic Safety and Licensing i
Board ("the Licensing Board") issued a Memorandum and Order which j
renewed its previous authorization for operation of the Seabrook nuclear power plant at low power levels.
ASLDP No. 88-55, 01-l f
OLR.
Intervenor New England Coalition on Nuclear Pollution i
("NECNP") presents the folicwing arguments in appeal of that 4
decision.1 I.
BACKGROUND On March 25, 1987, the Licensing Board issued a Partial Ini-tial Decision ("PID") which authorizes Public Service Co. of New
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1 We note that the Appeal Board has ruled that authorization I
to operate at low power cannot be given effect pending the soutcome of litigation on remanded contantions concerning the l
siren systems for Seabrook.
ALAB-883, 27 NRC at (February
'J, 1988), slip op. nt 24.
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8804180067 0D0407 PDR ADOCK 05000443 g
PDR.
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S Hampshire ("Applicants") to operate the Seabrook nuclear power plant at power levels up to and including 5% of rated power.2 NECNP appealed that decision on the merits, arguing, inter alia, that the Licensing Board had wrongly denied a number of conten-tions and had errod in ruling that Applicants satisfied the com-mission's environmental qualification requirements.
NECNP also contended that low power authorization was improper prior to the resolution of all contentions concerning Applicants' ability to satisfy the mandatory licensing requirements, including those for offsite emergency planning.
On October 1, 1987, the Atomic Safety and Licensing Appeal Board (the "Appeal Board") issued ALAB-875, reversing and remand-ing in part the March 25, 1987 Licensing Board decision authoriz-ing a low power license for Seabrook.
The Appeal Board ordered, I
inter alia, the.t the Licensing Board admit two of NECNP's conten-i tion concerning protection against steam generator tube ruptures (NECNP Contention I.V.) and potential degrading of the plant's heat removal capcbility due to build-up of biological organisms (NECNP Contention IV), and begin the litigation process for these improperly rejected contentions.3 Litigation of those conton-2 Public Service Co. of New Hamoshire. et al. (Seabrook Station, Units 1 and 2), LBP-87-10, 25 NRC 177 (1987).
Hereinafter, all administrative decisions in the Seabrook proceeding will be cited only by number and date.
The agency's citation sys-tem denotes decisions of the Licensing Board Panel as "LBP" decisions, Appeal Board decisions as "ALAB," and Commission decisions as "CLI."
b
. tions is now underway.
In ALAB-875, the Appeal Board also ordered the Licensing Board either to find as-yet unidentified support in the record for its ruling that a class of electrical cabling is qualified to survive accident environments (NECNP Contention I.B.2), or to reopen the record on that issue.4 The Licensing Board's first explanatory memorandum was rejected by the Appeal Board; the parties are now responding to a second memorandum from the Licensing Board.
By order of Novcaber 27, 1987, the Licensing Board directed the parties to brief the issue of whether authorization to oper-ate the Seabrook rcactor at low power should be renewed.
NECNP opposed the renewal of low power operation while its three remanded contentions remained unresolved, based on the legal
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argument that the Atomic Energy Act requira: 3 the completion of i
I hearings on all uafety issues before reactor operation at aDY l
power level may be authorized.
The Licensing Board refused to consider NECNP's legal argument and instead authorized low power operation on the ground thetc the safety issues raised in NECNP's remanded contentions IV (biofouling) and I.V.
(steam generator tube degradation) "would not adversely impact upon the public 3
ALAB-875, slip op. at 13-20.
4 ALAB-875, slip. op. at 14, 20, 35-39.
j
-4 health and safety if Seabrook, Unit 1, were to be authorized to operate only up to 5% of rated power."
Slip op. at 9.5 The Board did not address the significance of remanded contention I.B.2 (environmental qualification), or its relevance to low power operation.
ARGUMENT II.
THE ATOMIC ENERGY ACT PROHIBITS AUTHORIZATION OF LOW POWER OPERATION PRIOR TO COMPLETION OF PUBLIC HEARINGS ON ALL ISSUES MATERIAL TO FULL POWER LICENSING.
As a result of the Appeal Board's remand of NECNP Conten-tions IV and I.V.
alleging that Applicants have not satisfied mandatory onsite safety requirements, NECNP is entitled to a full hearing on these contested safety issues prior to the issuance of a low power license.
No low power license may be issued unless and until thosa contentions are finally resolved in Applicants' favor.
Moreover, the record may well be re-opened with respect to NECNP Contention I.B.2, relating to whether Applicants have satisfied GDC 4 with respect to enviconmental qualification of the RG5fs coaxial cable, if the Appeal Board determines that the record as it now exists does not support the Licensing Board's initial findings.6 Issuance of a low power licer.se prior to the i
l 5
The Licensing Board did, however, agree with NECNP that l
Applicants and the NRC Staff had improperly sought to dismiss l
NECNP's contentions on the merits, and considered only the l
arguments pertaining to the relevance of NECNP's contentions to low power operation.
1 6
While the Licensing Board's November 27th order directed briefings only on Contentions IV and I.V, we believe that low i
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. resolution of these contested issues will violate NECNP's right under 5 189a of the Atomic Energy Act, 42 U.S.C.
9 2239(a), to a full operating license hearing before the license is granted.7 The Licensing Board has imposed on NECNP the onerous burden of demonstrating that its contentions have some special relevance to low power operation in order to obtain a hearing on its remanded contentions before issuance of a license for low power operation.
The Licensing Board is in error.
As a matter of law, NECNP need only show that these remanded issues are material to the issuance of an operating license for Seabrook.
Union of Con-cerned Scientists v.
U.S.
Nuclear Reculatory Commission, 735 F.2d 1437 (D.C. Cir. 1984).
That showing has been conclusively estab-lished by virtue of the admission of the issues to the licensing (continued) power authorization must also await resolution of Contention I.B.2.
7 The Appeal Board has previously stated that it will not enter-tain challenges to 10 CFR E5 50.47(d) and 50.57(c).
ALAB-865, 25 NRC 430, 439.
The instant case, however, does not present a regulatory cnallenge.
Section S 50.47(d), which relates only to emergency planning, is not at issue here.
- Moreover, as demonstrated below in Section III, the arguments presented in this brief are not inconsistent with 5 50.57(c).
While NECNP challenges a recent Commission interpretation of 9
- 50. 57 (c) in the Shoreham case which conflicts with the history of the regulation and with past Commission precedent, we believe that the regulation itself is entirely consistent with the hearing requirements of the Atomic Energy Act.
Even if the Appeal Board considers itself to be bound by the Commis-sion's Shoreham decision, however, NECNP must raise these arguments at each level of this proceeding in order to preserve its rights of appeal.
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. proceeding.8 Accordingly, the Atomic Energy Act requires that NECNP be given a full hearing on these issues prior to the renewal of authorization to operate Seabrook at low power.
A.
The legislative history of the expired Temporary opera-ting License Authorization demonstrates that Congress did not authorize issuance of low power licenses until completion of all hearinas relevant to licensina.
NECNP's rights in this proceeding are governed by Section 189 (a) (1) of the Atomic Energy Act, which requires that in any proceeding "for the granting, suspending, revoking, or amending of any license or construction permit,"
The Commission shall grant a hearing upon 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.
42 U.S.C. 5 2239(a).
The hearing must be held before the Commis-sion takes the proposed licensing action.
Ehpi ly v. IJ. S. Nuclear Esculatory CL*. mission, 651 F.2d 780, 789 (D.C. Cir. 1980),
vacated on other c' rounds, 103 S..Ct.
1170 (1983) ; Union of Con-p_pyned Scie 11tists v. lluclear Reaulatorv._ggnission, 735 F.2d 1437 (D.C. Cir. 1984).
8 In its Memorandum and Order, the Licensing Board suggests that NECNP is barred from challenging the Board's authority to renew the low power license because NECNP did not request the Commission to reconsider its decision in CLI-87-13, 26 NRC 400 (1987), in which the Commission lifted its stay of low power operation and directed the Licensing Board to determine whether low power operation should be renewed.
Slip op. at 11 and n.
8.
The Licensing Board is mistaken.
It is an axiom of NRC practice that all arguments must be raised to the Licens-ing Board before they may be appealed to higher tribunals.
In any event, no such motion is required under NRC rules of prac-tice.
L
. The Atomic Energy Act contains no provision permitting the Commission to authorize the operation or a nuclear power plant at low power levels before full power license hearings are complete and all relevant issues are resolved; nor does it dispense with the prior hearing requirement for any initial operating license i
decision.
Rather, under the Act, all issues that are material to the full power operation of a nuclear power plant must be consid-ered relevant to the issuance of a license for any level of oper-ation.
This interpretation of the Atomic Energy Act is reinforced by the legislative history of the provisions regarding low power operation.
On the two prior occasions when Congress perceived a need to permit low power operation before licensing hearings were complete, it gave the Commission only temocrary authority to do so.9 In bot'a instances, Congress was responding to a perceived emergency, and in both instances Congress strictly limited the duration of the NRC's authority to issue a "temporary operating license" or "TOL."
The legislative history of those two enact-ments demonstrates the strength of Congress' intent that in the absence of specific Congressional authorization, the public's statutory right to full hearings on the issuance of operating licenses may not be compromised by the issuance of a low power 9
E20 42 U.S.C.
S 2242, which expired December 31, 1983.
i 1 license before those hearings have been completed.
(1) 1972 temporary operatino license amendment In 1972, responding to a perceived threat of imminent energy shortages, Congress amended the Atomic Energy Act to permit the NRC to issue temporary operating licenses without the completion of the full adjudicatory hearings required by Section 189a of the Act.10 According to the Chairman of the Atomic Energy Commis-sion, te legislation was needed in part to allow the NRC to speed reactor testing and thereby "properly anticipate emergency power needs."
Statement of James S.
Schlesincer before Joint Committee on Atomic Enerov, March 16, 1972, at 74.
The new provision required that before the Commission could issue a TOL, it must have received the letter of the Advisory Committee on Reactor Safeguards ("ACRS"), the Staff's Safety Evaluation Report ("SER"), and the environmental impact state-ment.
However, intervenors were entitled to no more than an informal hearing on whether the plant could be operated safely on i
a temperary basis.
Section 192 did not elir.inate the full licensing hearings required by Section 189a, but allowed the NRC to postpone them until after issuance of the low power license.
As the House Report explained, 10 Section 192 of the Atomic Energy Act (42 U.S.C.
5 2242),
added June 2, 1972, Pub.
L.92-307, 86 Stat. 191.
. Under this new authority, the Commission is authorized to issue a temocrary license to operate the reactor under these circumstances even thouah the full-term license is beina contested by interested members of the oublic.
The temporary license would not deprive the public of a full review of the health and safety and environmental matters which may be contested.
All substantive requirements of applicable law would have to be satisfied.
House Rept. No. 92-1027, 1972 U.S. Code Cong. and Admin. News 2351 (emphasis added).
In permitting the issuance of TOLs, Congress attempted to avoid or ameliorate "threatened shortages" during the summer of 1972 and the winter of 1972-3.
1972 U.S.
Code Cong. and Admin.
News at 2352.
Congress was also concerned that litigation of environmental impact statements under the NRC's newly promulgated regulations for the implementation of the National Environmental Policy Act ("NEPA") would result in "prolonged" hearings that would delay licensing.
Id. at 2355.11 In particular, the legis -
lation was designed to overcome the court's ru)ine in 'zaak Halton Leacue of America v._Echlesincer, 337 F.2d 287 (D.C.D.C.
1971), in which the District Court enjoined issuence of a low 11 As the House Report explains, after passage of the National Environmental Policy Act in 1970, the issues open for litiga-tion in licensing hearings "were expanded so that the Commis-sion had to consider all significant environmental matters in its decisionmaking process, which, under the Atomic Energy Act, includes the hearing requirements summarized above."
1972 U.S.
Code Cong. and Admin. News at 2355.
In response to the U.S.
Court of Appeals' 1971 decision in Calvert Cliffs Coordinatina Committee v. United States Atomic Enerav Commis-sion, 449 F.2d 1109 (D.C. Cir. 1971), the Commission had "issued regulations which impose a very stringent environmen-tal review" of proposed nuclear reactor licenses.
Id.
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. power license because the Commission had failed to file an environmental impact statement for the plant or to offer a hear-ing on the adequacy of the EIS.
See Statement of James S.
Schlesinger before Joint Committee on Atomic Energy, March 16, 1972, at 77-78.
Sensitive to the interests of the public in licensing hear-ings, Congress stressed that the temporary licensing provision should be used by the Commission only where there was an "urgent need" for the energy.
Id. at 2356.
More important, the legisla-tion contained an expiration date that gave the NRC less than a year and a half to implement the TOL provision.
Thus, Congress gave the NRC only so much authority to issue TOLS as it deemed was necessary to cope with a perceived short-term energy crisis.
Clearly, Congress intended that under ordinary circumstances and in the abrence of special legislation, the public was entitled to full adjudicatory hearings before the issuance of an operating license.
(2) 1982 teracora ry operatina license amendment After the 1972 temporary operating license legislation expired, nine years passed before Congress again perceived the need to grant utilities relief from the Atomic Energy Act's strict prior hearing requirements.
In January of 1983, in response to licensing delays caused by the Three Mile Island
. accident, Congress again enacted a special, limited-term temporary operating license provision.
This new version of S 192 allowed the Nuclear Regulatory Commission to issue temporary licenses for fuel loading and operation at up to 5% of rated power, with special provision for incremental increases in power levels.12 According to the Senate Report, the legislation was designed to alleviate the licensing delays that had been caused by the imposition of additional safety requirements following the Three Mile Island accident:
Largely as a result of this situation, it became appar-ent in late 1980 that some delays would be experienced between the time when construction of these plants would be sufficiently complete to allow fuel loading and the start of operation, and the time when all requirements for the issuance of an operacing license, includino the hearina recuirements, of the Atomic Energy Act, would be met.
Sen. Rep. No.97-113, 1982 U.S.
Code Cong. and Admin. News at 3593 (emphasis added).
As summarized in debates on the bill, The temporary operating license provision confers upon the NRC a much-needed authority arising out of the Post-TMI licensing delays, authorizing the NRC to issue operating licenses to applicants prior to the comple-tion of that certain public hearing required under the Atomic Energy Act, if all other statutory requirements are met.
128 Cong. Rec. 15314 (December 16, 1982) (remarks of Rep. Simp-12 42 U.S.C. 5 2242, Pub.L.97-415, 96 Stat. 2072 (January 4, 1983).
. son).
Like the original version of S 192, the 1982 amendment established as prerequisites for a TOL the filing of the ACRS letter, the Staff's Safety Evaluation Report, and a final environmental impact statement.
In addition, the 1982 law required that no TOL could issue before the submission of a State, local, or utility emergency preparedness plan.
Were either of these two temporary operating license provi-sions in place today, they might conceivably give the Licensing Board the authority to issue an operating license permitting low power operation before completion of licensing hearings.
How-ever, both provisions have long since expired.
The legislative history of the TOL bills demonstrates unequivocally that Congress considered pre-hearing licensing such as the low power authorica-tion sought here to constitute a short-term umergency stopgap i
measure.
In the absence of such specific authorization from Con-gress, the Commission may not issue an operating license author-izing any level of operation at the Seabrook nuclear power plant until it completes hearings on all issues that are material to full power operation.
B.
"Sholly Amendment" Lecislative History It is by now generally recognized that the issuance of a l
license authorizing low power operation would have the irrevers-ible effect of causing the contamination of the Seabrook plant, and posing some risk to the public health and safety. Lona Island I
t
. Liahtina Co. (Shoreham Nuclear Power Station), CLI-85-12, 21 NRC 1587 (1985).
For this reason, the legislative history of the "Sholly Amendment" reinforces the view that Congress did not intend to authorize the initial operation of a nuclear power plant at any power level, with its accompanying irreversible changes and raised risk to the public health and safety, until the NRC completes hearings on all issues that are material to the full power licensing of the plant.13 The "Sholly Amendment" amended Section 189(a) to permit the Commission to waive the prior hearing requirement for operating license amendments that pose "no significant hazards consideration." Significantly, Con-gress did not, at that time, include operating licenses within the ambit of that authority.
Rather, only for license amendments which, despite their "irreversible consequences," pose "no sig-nificant hazards consideration" to the public, has Congress made an exception.
The following colloquy between Rep. Markey and Rep. Ottinger claarly indicates that the NRC is not permitted, absent specific Congressional authorization, to take any licensing action carry-ing "irreversible consequences" without granting a prior hearing on those actions.
l MR. MARKEY:
I note that with respect to section 12 of the bill, the so-called Sholly provision, the statement of man-agers emphasized that, in determining whether a proposed 13 42 U.S.C.
5 2239(a), Pub.
L.97-415 5 12(a), 96 Stat. 2073 (January 4, 1983).
l l
l t
.. amendment to a facility operating license involves no sig-nificant hazards consideration, the Commission should be sensitive to those license amendments that involve irrevers-ible consequences.
As chairman of the subcommittee that originated the Sholly provision in this House, do you under-stand that statement to mean that the Commission should be especially careful in evaluating, for possible hazards con-sideration, amendments that involve irreversible con-sequences?
MR. OTTINGER:
Yes, that is exactly what I understand our intent to have been.
Once a license amendment with irrever-sible consequences has received the Commission's approval and has gone into effect, as a practical matter it will be impossible to correct any errors that may have entered into the Commission's decision.
Therefore, we believed that the Commission has an obligation, when assessing the health and safety considerations of amendments having irreversible con-sequences, to insure that only those amendments that very clearly raise no significant hazards issues will be allowed to take effect before the required hearings can be held.
128 Cong. Rec. 8823 (December 2, 1982).
In sum, the Sholly Amendment contains no provision that would exempt operating licenses from prior hearinge based on something analogous to a "no significant hazards consideration" finding.
Therefore, no matter how insionificant the Commission may view the consequences of low power operation in the context of the overall benefits of full power operation, the Atomic Enargy Act forbids the issuance of a low power license until the Commission has made the findings and reached the conclusions required for issuance of an operating license for the Seabrook plant.
III.
THERE IS NO AUTHORITY IN THE COMMISSION'S REGULATIONS FOR ISSUANCE OF A LOW POWER LICENSE PRIOR TO FINDINGS ON ALL ISSUES RELEVANT TO FULL POWER OPERATION.
The Licensing Board incorrectly interprets 10 C.F.R. 5 f
. 50.57(c) to allow it to issue a low power license before resolu-tion of contested onsite safety issues if the Board determines that these contested issues are not "relevant" to low power licensure.
This construction of 5 50.57(c) is inconsistent with both the plain language and regulatory history of 5 50.57(c),
as well as prior NRC decisions.14 Rather, both the regulatory his-tory of 5 50.57(c) and past licensing decisions reinforce the conclusion that the Commission has no authority to grant the equivalent of ad hgc, case-by-case "exemptions" from mandatory licensing requirements in the context of low power authorization, outside of the normative process of petitioning for regulatory waivers.
Commission regulation 10 C.F.R. 5 50.57(c) provides that, in cases of motions for low power authorization, Action on such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings, including the right of any party to be hoard 19 the extent his contentions are relevant to the activity to be authorized.
It is this underscored language that la relied on, out of con-text, as ostensible authority for the Licensing Board to pick and choose among mandatory licensing requirements and to require Applicants to satisfy only those requirements that are, in the absolute discretion of the Board, "relevant" to low power licensure.
However, this was plainly not the intention of this 14 As discussed above, this construction of 5 50.57(c) is also at odds with 5 189 of the Atomic Energy Act.
, regulatory language.
Rather, the real purpose of this provision is made plain by the next sentence of the regulation, which pro-vides that Prior to taking any action on such motion which any party opposes, the cresidina officer shall make findinas on the matters specified in caracraoh (a) of this section as to which there is a controversy, in the form of an initial decision with respect to the contested activity sought to be authorized.
The Director of Nuclear Reactor Reculation will make findinas on all other matters specified in caracraoh (a) of this section.
10 C.F.R. 5 50.57(c) (emphasis added).
This language clearly indicates that the purpose of 5 50.57(c) was simply to relieve the Licensing Board of the obliga-tion to make positive findings on uncontested issues prior to low power operation, by delegating this function to the Director of Nuclear Reactor Regulation (NRR).
Nothing in the regulation vitiates the Licensing Board's obligation to make findings on all operating license issues "as to which there is a controversy" prior to issuance of a low power license.
In other words, this regulation was clearly intended to be protective of the parties' rights to a prior hearing on contested issues, not to abrogate them altogether.
The regulatory history of 5 50.57(c) reinforces this read-ing.
The language relied on by Applicants was adopted in 1972, when 5 50.57 was amended to adopt procedures designed to expedite and make more efficient administrative decisionmaking.15 There 15 Eeg Notice of Proposed Rulemaking, "Restructuring of Facility
, 1s absolutely no suggestion that the amendments were intended to effect a change so drastic as to permit the issuance of an opera-ting license without resolving all safety issues.
The statement of consideration accompanying the notice of final rulemaking make clear that "the amendments do not involve drastic changes in the administrative process or novel procedures."16
- Rather, S 50.57(c) does no more than establish a policy for low power licenses of having the Licensing Board decide contested issues, and permitting the Director of NRR to make findings as to uncontested issues.
And in fact, between 1972 and 1984, this rule was not con-strued as permitting a Licensing Board to determine summarily that contested safety issues are "not relevant" to low power operation.
Rather, past licensing decisions authorize low power operation only after resolution of contested onsite cafety issues that were the subject of admitted contentions.
For example, in Texas Utilities Electric Co. (Commanche Peak Steam Electric Sta-tion, Units 1 and 2), LBP-84-30A, 20 NRC 443, 444 (1984), the Licensing Board denied low power authorization due to the pendency of a broad quality assurance contention, on the grounds (continued)
License Application Review and Hearing Processes," 37 Fed.
Rec. 15124, Col. 3 (May 9, 1972).
16 37 Fed. Reo. 15127, 15128, Col. 1 (July 28, 1972).
, that 10 C.F.R. 5 50.57(c) "requires us to make the findings listed in 5 50.57(a) with respect to the contested activity souaht to be licensed." (emphasis in original).17 The licensing decisions permitting low power operation prior to the resolution of new, late-filed allegations, do not con-tradict our view that Commission has no authority to authorize low power operations prior to the resolution of admitted, unresolved onsite safety contentions.
As nas recognized by the D.C.
Circuit in San Luis Obispo Mothers For Peace v. NRC, 751 F.2d 1287, 1312 (D.C. Cir. 1984), "the Commission's criteria for reopening a closed record are higher than the criteria for obtaining a hearing under section 189(a)."
The Licensing Board does not possess such comparable discretion where the record remains open and there are outstanding, unresolved safety issues in controversy.
Here, the Appeal Board's remand firmly estab-lishes that NECNP has already made the requisite showing that 17 In Commonwealth Edison Co (Eraidwood Nuclear Power Station, Units 1 and 2), LBP-86-31, 24 NRC 451 (1986), the Licensing Board issued a license authoriziry fuel loading and pre-criticality testing prior to the resolution of contested safety contentions, but expressly noted that a different stan-dard would be applicable to a request for low power operating licenses than to "a mere request for fuel loading and precriticality testing." Id., at 457 n.2.
While we do not believe that the distinction between precriticality and low power operation is a valid one, this case plainly indicates that onsite safety issues must be resolved prior to authoriz-ing operations involving irradiation of the reactor core.
. resolution of the remanded contentions is necessary to the safe operation of the plant at any level of power, and no additional showing is required.18 The novel interpretation that 5 50.57(c) authorizes discre-tionary Licensing Board determinations as to the "relevance" of particular safety requirements to low power operation can be traced to Lona Island Liahtina Co. (Shoreham Nuclear Power Sta-tion, Unit 1), CLI-84-21, 20 NRC 1437 (1984) (hereafter "Shoreham II"), in which LILCO sought a low power license under S 50.57 (c).
In an earlier decision, the Commission held that as a condition of even low power operation, the Applicant must satisfy the mandatory General Design Criterion requiring reliable emergency power supplies, unless it satisfied the reauirements for an exemotion under 10 C.F.R.
S 50.12(a), demonstrating, inter alia, that operation without compliance with the rule would be "as safe 18 Signficantly, even those decisions permitting low power authorization prior to resolution of late-filed contentions or 92.206 petitions in no way indicate that "safety" means some-thing different depending on the level of power to be author-ized.
Egg Diablo Canyon, DD-84-20, 20 NRC 776, 780 (1984) (a low power license may not be issued prior to the resolution of a petition filed under 10 C.F.R. 5 2.206 if the allegations raise significant new information concerning "safety-related" activities or equipment) ; Carolina Power & Licht Comoany, et alz (Shearon Harris Nuclear Power Plant), DD-87-6, 25 NRC 387, 388 (1987) (if issues in petition filed under 10 C.F.R.
S 2.206 "do not present significant safety concerns, the Nuclear Regulatory Commission may issue the low-power or full-power operating license.")
It would be illogical to have a lower standard for issuance of a low power license where, as is the case here, the record has already been reopened for the liti-gation of substantive safety issues.
. as" operation in compliance with the ruls.19 Lona Island Liaht-ina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984) (hereafter "Shoreham I").
In a revealing SECY paper responding to this decision, the Commission staff recog-nized that a Licensing Board could not "distinguish more care-fully among safety requirements for fuel loading and other opera-tional phases,... without extensive changes to the regula-tions."20 Instead, the Staff suggested that the Commission would have greater flexibility if it relaxed the "as safe as" standard it had set for granting exemptions.
The Staff relied on the fol-lowing reasoning to justify this less restrictive exemption stan-dard:
Some regulations, including some GDC, may properly be con-sidered inapplicable to fuel loading and low power testing if such a conclusion is fairly compelled by simple logic and common sense.
However, a reculation cannot be considered inacolicable merelv because, as aoolied to fuel loadina or low-cower testina, it is locical but arauably excessive.
SECY-84-290A, at 26 (emphasis added).
The first part of the above-quoted language was then seized out-of-context by the Licensing Board as authority for simply disregarding on a case-by-case basis mandatory safety require-ments which do not appear to the ASLB to be necassary for opera-19 10 C.F.R. 9 50.12(a) also requires, inter alia, a showing of exigent circumstances justifying an exemption.
20 SECY-84-290A, at 2.
._ ~
. tion at less than full power.
Lona Islan.d Liahtina Co. (Shorcham Nuclear Power Station, Unit 1), LPB-84-35A, 20 NRC 920, 924 (1984).
In so holding, the Licensing Board cited no authority (other than the inapposite SECY paper) and essentially ignored the express language in the SECY paper stating that the "flexibility" perceived by the Licensing Board was not possible under the current language of 5 50.57(c), as well as the overall thrust of the SECY paper that the sole way to avoid a safety requirement was to apply for an exemption under 5 50.12.
Despite the total lack of regulatory or case authority for this novel reading of 550.57(c), the Commission approved the Licensing Board's decision.
Shoreham II, 20 NRC at 1439-1440.
Again, no authority other than "simple logic and common sense" was cited.
Interestingly, had the Commission intended to interpret S I
50.57(c), which has been in existence since 1972, in this novel manner, it would presumably have found it unnecessary, ten years later, to promulgate 5 50.47(d) to provide a specific, generic exemption from the regulatory requirements governing offsite emergency planning for low power license applications.
As was noted in Pacific Gas and Electric Co (Diablo Canyon, Units 1 and 2), 17 NRC 777, 789 (1983), "This amendment (S 50.47(d)) makes f
clear that for fuel loading and low power testing it is the applicant's onsite emergency plan and preparedness that is cru-cial..."
More importantly, the promulgation of an express exemption from emergency planning regulations for purposes of low
'. power operation demonstrates that, in 1982, the Commission felt that it had no existing authority -- under 5 50.57(c) or else-where -- to give Licensing Boards the uncontrolled discretion to grant what amount to regulatory exemptions on such an ad hoc, basis, or to place the burden upon those opposing a license to establish the applicability to low power of any and all rules.
Finally, any reading of 5 50.57(c) which gives licensing boards uncontrolled discretion to grant the practical equivalent of regulatory exemptions would stand the Commission's licensing scheme on end.
NRC regulations establish a presumption that licensing regulations are mandatory for all nuclear power plants and may not be relitigated or challenged in an operating license case, except via the formal process for obtaining regulatory exemptions. 10 C.F.R. 5 2.758(a).
To permit Applicants to bypass mandatory safety requirements outside the formal exemption pro-cess would establish a presumption that n2 regulation is relevant to low power operation unless an intervenor shows that compliance is necessary.
Accordingly, 10 C.F.R. 5 50.57(c) cannot be con-strued as granting the licensing board the authority, on an ad has, case-by case basis, to waive mandatory safety requirements.
.s
. IV.
APPLICANTS MUST SATISFY COMMISSION REGULATIONS WITH RESPECT TO REMANDED CONTENTIONS, OR SATISFY THE STANDARD FOR AN EXEMPTION. PRIOR TO RENEWAL OF LOW POWER AUTHORIZATION Applicants carry the burden of proving that they satisfy all Commission regulations before they can receive a license for the operation of the Seabrook nuclear power plant.
10 CFR 55 50.57(a), 2.732.
As discussed above, except for certain offsite emergency planning requirements exempted under 5 50.47(d), no regulatory exceptions are made for licenses permitting low power operation.
Hence, before receiving aDY license to operate the Seabrook plant, Applicants obtain a favorable resolution of NECNP's three remanded contentions.
The only alternative means available to Applicants that would enable them to bypass litigation of these outstanding con-tentons prior to receiving a license to operate at low power authorization is to petition for a regulatory waiver of the Gen-eral Design Criteria and regulations that are the subject of NECNP's contentions, pursuant to 10 C.F.R. 5 2.758(b).21 Any other standard would violate the presumption of the validity and 21 Regulatory exemptions may be granted only where the applicant can demonstrate special circumstances with respect to the sub-ject matter of the proceeding such that application of the regulation would not serve the purposes for which it was adopted, or upon a showing of "exceptional circumstances." 10 C.F.R. SS 2.758(b) and 50.12.
Under both exemption standards, "the burden is on... the petitioner for a waiver." Carolina Power & Licht Company. et al. (Shearon Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410, 443 n.16 (1985), aff'd, ALAB-837, 23 NRC 525 (1986)
. general applicability of all regulations that is embodied in 10 C.F.R. 5 2.758, and unlawfully shift the burden of proof away from the party seeking a waiver of a regulatory requirement, placing it instead on parties who seek to ensure compliance with valid regulations.
Indeed, this is the standard that has been applied by the Commission in past proceedings.
For example, in Shoreham I, the Commission held that LILCO must satisfy the mandatory General Design Criterion requiring reliable emergency power supplies (GDC
- 17) prior to issuance of a low power license, or demonstrate that it satisfies the standards for an exemption under 10 C.F.R.
S 50.12.
On remand, the Licensing Board stated "(a]n exemption to GDC 17 may be authorized for low power operation whero applicant has shown that operation would be as safe as it would be if it were in full compliance, and that exigent circumstances favor the grant of the exemption."
LBP-84~45, 20 NRC 1343, 1345 (1984).
In sum, the presence of unresolved, admitted contentions concerning mandatory, onsite safety requirements, is sufficient by itself to establish that these contentions are relevant to the license under consideration, and the issuance of a license to operate at any level of power is barred until these outstanding issues are resolved.
Insofar as NECNP's rights are concerned, it is entitled to be in the same posture as if its contentions had I
25 -
not been erroneously rejected.
Had NECNP's contentions been properly admitted, there would have been no question that the issues needed to be fully heard and resolved in the Applicants' favor in an initial decision.
Accordingly, the only alternative to cne litigation and resolution of these contentions is for Applicants to petition for a waiver of the General Design Criteria at issue.
However, Applicants have not petitioned for a waiver of any of these GDC.
Until Applicants do so, and satisfy the formidable burden placed on one seeking a regulatory waiver, no low power license can be granted.
V.
CONCLUSION For the reasons discussed above, Licensing Board violated the provisions of the Atomic Energy Act and NRC regulations when it renewed Applicants' authorization to operate the Seabrook plant at up to 5ts of rated power.
Therefore, the Licensing Board's decision should be reversed.
4tespectful submitted,
(
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^- s dM-t d a__ Ag Diane Curran Andrea Forster HARMON & WEISS 2001 S Street, N.W.,
Suite 430 Washington, D.C.
20009 (202) 328-3500 April 7, 1988 CERTIFICATE OF SERVICE I certify that on April 7, 1988, copies of this pleading were served by first-class mail on he parties to the attached service list.
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SEABROOK SERVICE LIST -- ONSITE APPEAL BOARD i
Sheldon J. Wolfe, Chairman 155 Washington Road Office of General Counsel Alan S. Rosenthal, Chairman U.S. NRC Rye, New Hampshire 03870 U.S. NRC U.S. NRC Washington, D.C 20555 Washington, D.C 20555 Washington, D.C 20555 Richard E. Sullivan, Mayor Dr. Jerry Harbour City Hall Mr. Angie Machiros, Howard A. Wilber U.S. NRC Newburyport,MA 01950 Chairman U.S. NRC Washington, D.C. 20555 Town of Newbury Washington, D.C. 20555 Alfred V. Sargent, Chairman Town Hall,25 High Road Dr. Emmeth A. Luebke Board of Selectmen Newbury,MA 01951 5500 Friendship Boulevard Town of Salisbury, MA 01950 Apartment 1923N George Dana Bisbee, Esq.
Chesy Chase, MD 20815 Senator Gordon J. Humphrey Geoffrey M. Huntington, Esq.
U.S. Senate Office of the Attorney General Atomic Safety & Licensing Washington, D.C 20510 State House Annex Board Panel (Attn. Tom Burack)
Cor cord, NH 03301 cao U.S. NRC 83 Washington, D.C 20555 Selectmen of Northampton Allen Lampert h,2 p
g Northampton, New Hamp-Civil Defense Director M
-8 c-8 Atomic Safety & Licensing shire 03826 Town of Brentowood g'g M
a Appeal Board Panel Exeter, NH 03833 Pff m.;
N U.S. NRC Sent. tor Gordon J. Humphrey Q,
y Washington, D.C 20555 1 Eagle Square, Ste 507 Richard A. Hampe, Esq.
g g
Concord, NH 03301 Hampe and McNicholas
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Docketing and Serdce 35 Pleasant Street U.S. NRC Michael Santosuosso, Concord,NH 03301 Washingtoa, D.C 20555 Chairman Board of Selectmen Gary W. Holmes, Esq.
Mrs. Anne E. Goodman Jewell Street, RFD #2 Holmes & Ellis Board of Selectmen South Hampton, NH 03842 47 Winnacunnent Road 1315 New Market Road Hampton,NH 03842 Durham,NH 03842 Judith H. Mizner, Esq.
Silverr, late, Gertner, et al.
William Armstrong Williara S. Lord, Selectman 88 Broad Street Cidl Defense Director Town Hall Friend Street Boston, MA 02110 1C Front Street Amesbury,MA 01913 Exeter, NH 03833 Rep. Roberta C. Pestar Jane Doughty Drinkwater Road CaMn A. Canney SAPL Hampton Falls, NH 03844 City Manager, City Hall 5 Market Street 126 Daniel Street Portsmouth, NH 03S01 Phillip Ahrens, Esq.
Portsmouth,NH 03801 Assistant Attorney General Carol S. Sneider, Esquire State House, Station #6 Matthew T. Brock, Esq.
Assistant AttorneyGeneral Augusta,ME (M333 Shaines & McEachern 1 Ashburton Place,19th Floor P.O. Box 360 Boston, MA 02108 Thomas G. Dignan, Esq.
Maplewood Astnue R.K. Gad II, Esq.
Portsmouth, NH 03801 Stanley W. Knowles Ropes & Gray Board of Selectmen 225 Franklin Street Sandra Gavutis P.O. Box 710 Boston, MA 02110 RFD 1, Box 1154 North Hampton, NH 03826 East Kensington, NH 03827 Robert A. Backus, Esq.
J.P. Nadeau Backus, Meyer & Solomon Cl arles P. Grahim, Esq.
Town of Rye til lowell Street McKay, Murphy and Graham Manchester,NH 03105 100 Main Street Amesbury, MA 01913 Gregory A. Berry, Esq.
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