ML20154D886

Applicant Brief in Response to New England Coalition on Nuclear Pollution Appeal of Memorandum and Order Renewing Authorization to Operate at Low Power.* Decision of Board in LBP-88-6 Should Be Affirmed.W/Certificate of Svc

ML20154D886
Person / Time
Site:	Seabrook
Issue date:	05/10/1988
From:	Steenland D PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#288-6248 LBP-88-6, OL-1, NUDOCS 8805200019
Download: ML20154D886 (10)

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000KETED Mayld,$988 UNITED STATES OF AMERICA UNITED STATES NUCLEAR REGULATORY COMMISSION OFFICE 0F HC.4 iar. -

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before the E#hN ATOMIC SAFETY AND LICENSING APPEAL BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY ) Docket Nos. 50-443 OL-1 NEW HAMPSHIRE, et al. ) 50-444 OL-1

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(Seabrook Station, Units 1 ) (On-site Emergency and 2) ) Planning Issues)

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APPLICANTS' BRIEF IN RESPONSE TO NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S APPEAL OF MEMORANDUM AND ORDER RENEWING AUTHORIZATION TO OPERATE AT LOW POWER BACKGROUND On March 25, 1987 the Licensing Board issued a Partial Initial Decision ("PID") which authorized issuance of a license to operate Seabrook Station at up to 5% of rated power. Public Service Comoany of New Hamoshire, (Seabrook Station, Units 1 and 2), LBP-87-10, 25 NRC 177 (1987). Upon appeal of the PID, the Appeal Board issued a decision affirming in part, and reversing and remanding in part.

Public Service Company of New Hamoshire, (Seabrook Station Units 1 and 2) ALAB-875, 26 NRC 251 (1987). On remand, the Appeal Board stated that the Licensing Board should admit for i

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c litigation two contentions which had been previously rejected: namely, New England Coalition on Nuclear Pollution

("NECNP") Contention I.V. (regarding inservice inspection of steam generator tubes) and NECNP Contention IV (regarding the accumulation of aquatic organisms in the cooling system).1 In addition, in ALAB-875 the Appeal Board stated that the Licensing Board should determine the appropriateness of a renewal eendente lite of the low power authorization provided in the PID. ALAB-875, supra, 26 NRC at 276.

On November 27, 1987 the Licensing Board issued an unpublished order directing the parties to brief the issue of whether the authorization to operate at low power should be renewed. Applicants and Staff filed briefs putting forth the position, on the basis of numerous affidavits, that the two rehanded contentions were not relevant to low power operation because any safety concerns raised by the contentions would not adversely affect the public health and safety. NECNP opposed the rcnawal of low power operation on the basis of a legal argument that the Atomic Energy Act requires the 1 Following extensive discovery, on April 29, 1988 Applicants submitted motions for summary deposition. By letter of April 22, 1988 to the Licensing Board, NECNP expressed its decision not to oppose the summary deposition motions. NECNP further expressed its intention to appeal a ruling of the Licensing Board regarding the scope of Contention IV. NECNP's letter is attached.

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completion of hearings on all safety issues before operation at any level of power may be authorized.

On February 17, 1988 the Licensing Board issued a Memorandum and Order renewing its authorization of-low power operation. Public Service Company of New Hamoshire, (Seabrook Station, Units 1 and 2), LDP-88-6, 27 NRC (February 17, 1988).2 It is this decision which is the subject of the appeal at bar.

ARGUMENT Subsequent to its appeal of LBP-88-6, NECNP, in a letter to the Licensing Board, expressed its "decision not to litigate these two Contentions...." See n.1, supra. As NECNP does not oppose Applicants' summary disposition motions on the two remanded Contentions, the issues arising out of Contentions I.V. and IV should be considered to be resolved.

Therefore, NECNP's appeal of LBP-88-6 is moot.

However, even if this Appeal Bocrd were to consider the merits of NECNP's appeal, the appeal must fail. In its appeal, NECNP makes no issue specific arguments alleging error in the Licensing Board determination that the two contentions are not relevant to low power operations.

2 The Licensing Board, however, did not give effect to its renewed authorization because of the holding in Public Service of New Hamoshire (Seabrook Station Units 1 & 2) A LA B-883, 27 NRC (February 3, 1988).

t Rather, NECNP revisits its legal arguments that the Atomic Energy Act entitles NECNP to a full hearing on all contested safety issues prior to the issuance of a low power license.

To the extent this argument is an attack on the validity of 10 C.F.R. S 50.57(c)3 because it deprives NECNP of a right to a hearing, it raises no request for relief which can be granted by this Appeal Board. ALAB-875, supra, 25 NRC at 256; Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430, 439 (1987);

see also 10 C.F.R. 5 2.758. To the extent that NECNP asserts 3 10 C.F.R. 9 50.57 (c) states:

An applicant may, in a case where a hearing is held in connection with a pending proceeding under this section make a motion in writing, pursuant to this paragraph (c), for an operating license authorizing low-power tacting (operation at not more than 1 percent of full power for the purpose of testing the facility), and further operations short of full power operation.

Action on such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings, includina the richt of any party to be heard to the extent that his contentions are relevant to the_ activity to be authorized. Prior to taking any action on such a motion which any party opposes, the presiding officer shall make findings on the matters specified in paragraph (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 Regulation will make findings on all other matters specified in paragraph (a) of this section. If no party opposes the motion, the presiding officer will issue an order pursuant to S 2.730(e) of this chapter, authorizing the Director of Nuclear Reactor Regulation to make appropriate findings on the matters specified in paragraph (a) of this section and to issue a license for the quested operation (emphasis added).

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that 10 C.F.R. 5 50.57(c) is consistent with its argument that the Atomic Energy Act entitles it to a hearing, NECNP i itself admits that this is directly contrary to the views of the Commission in Lona Island Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1) CLI-84-21, 20 NRC 1437 (1984).

Seo NECNP Brief at note 7. This Board, of ccurse, is bound by Commission rulings. Egg also, Public Service of New Hamoshire (Seabrook Station Units 1 and 2) CLI-87-13, 26 NRC 400, 405 (1987) ("As directed by the Appeal Board the 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.") (footnote omitted)

CONCLUSION The decision of the Licensing Board in LBP-88-6 should be affirmed.

Respectfully submitted,

. L Thomas G. Dignan, Jr.

Deborah S. Steenland Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 counsel for Applicants

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O HARMON & WEISS 2006 S STR E ET, N.W.

SUITE 430 WASHINGTON, D.C. soooo-nas C alb Mc3R EEvy M ARMON TELERMONE ELLYN R. wCISS (202142 S 3 s C O DIAN E CURRAN DEAN R. TOUSLEY ANDR E A C. FERSTER April 22, 1983 Sheldon J. Wolfe, Esq.

Dr. Emmeth A. Luebke Dr. Jerry Harbour Administrative Judges Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

SUBJECT:

Seabrook operating license case:

onsite emercency plannina and technical issues

Dear Administrative Judges:

On behalf of the New England Coalition on Nuclear Pollution (NECNP), I am notifying you that NECNP does not intend to liti-gate NECNP Contention I.V, on the adequacy of Applicants' program for in-service inapection of steam generator tubing, or NECNP Contention IV, to the extent that Contention IV relates to the adequacy of Applicants' program for monitoring to detect blockage of coolant flow resulting from the build-up of macro-biological organisms. Accordingly, NECNP will not file its own summary dis-position motien on these issues, nor wil1 it oppose any summary disposition motions filed by Applicants or the Staff to the extent such motionc address those issues.

NECNP's decision not to litigate these two Conten' ns is based on our review of the information and documents wt .ve received to date as a result of discovery under Contentions I.V.

and IV. Our decision also stems from this Board's procedural rulings on NECNP Contention IV, which effectively preclude NECNP from inquiring into, or litigating the adequacy of Applicants' program to control microbiological 1y induced corrosion, and other detrimental effects resulting from the accumulation of micro-biological organisms. NECNP continues to believe that Applicants' program for monitoring arid controlling microbiologi-l Attachment l

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HARMON & WEISS Atomic Safety and Licensing Board April 22, 1988 Page 2 cally induced corrosion is not adequata, and that this issue is within the scope of NECNP Contention IV. Accordingly, NECNP intends to appeal the Board's rulings regarding the scope of NECNP Contention IV and al'.owable discovery thereunder at the appropriate time.

Counsel for the Staff and Applicants have been notified by telephone of the content of this letter.

Very truly yours, g Andrea Ferster Counsel for NECNP cc: onsite service list 4

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a CEPTIFICATE OF SERVICE gggg gg U3NFC I, Deborah S. Steenland, one of the attorneys for the Applicants herein, hereby certify that on May 10, 1988, I made service of the within document by depositing copies *88 HAY 12 MI :13 thereof with Federal Express, prepaid, for delivery to (or where indicated, by depositing in the United States mail . __._. .

first class, postage paid, addressed to): UI DO NiY'/b' Alan S. Rosenthal, Chairman 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 East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 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 Court House Commission Post Office Square East West Towers Building Boston, MA 02109 4350 East West Highway Bethesda, MD 20814 Administrative Judge Sheldon J. Robert Carrigg, Chairman Wolfe, Esquire, Chairman Board of Selectmen Atomic Safety and Licensing Town Office Board Panel Atlantic Avenue U.S. Nuclear Regulatory North Hampton, NH 03862 Commission East West Towers Building 4350 East kest Highway Bethesda, MD 20814 Administrative Judge Emmeth A. Diane Curran, Esquire Luebke Andrea C. Forster, Esquire 4515 Willard Avenue Harmon & Weiss Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.

Washington, DC 20009 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814

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Adjudicatory File Atomic Safety and Licensing Sherwin E. Turk, Esquire-Board Panel Docket (2 copies) Office of General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission . Commission East West Towers Building One White Flint North, 15th Fl.

4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O. Box 360 One Ashburton Place, 19th Fir.

Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Scard of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn: Tom Burack) 79 State Street Newburyport, MA 01950

• Senator Gordon J. Humphrey Mr. Peter S. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 i .- .

e H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Judith H. Mizner, Esquire Charles P. Graham, Esquire 79 State Street, 2nd Floor Murphy and Graham Newburyport, MA 01950 33 Low Street Newburyport, MA 01950 N N Deborah S. Steenland

(*=U.S. First Class Mail.)

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