ML20155F668

New England Coalition on Nuclear Pollution Petition for Review of ALAB-892.* Commission Review of Board 880524 Decision ALAB-892,renewing Low Power Authorization for Plant Requested.Svc List Encl

ML20155F668
Person / Time
Site:	Seabrook
Issue date:	06/13/1988
From:	Curran D, Ferster A HARMON & WEISS, HUNTON & WILLIAMS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC COMMISSION (OCM)
References
CON-#288-6507 ALAB-892, OL-1, NUDOCS 8806170008
Download: ML20155F668 (12)

Text

-__

v~ o loSo 7 00CKETED U91RC June 13, 1988 18 JW 14 P6 :22 UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION '((- Gi D h i

)

In the Matter of )

)

Public Service Company of )

New Hampshire, et al. ) Docket No. 50-443 OL-1 ffff-49 /

)

(Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY

) PLANNING & TECHNICAL

) ISSUES

)

NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S PETITION FOR REVIEW OF ALAB-892 Pursuant to 10 C.F.R. 5 2.786(b), the New England Coalition On Nuclear Pollution (NECNP) hereby requests that the Commission review the Atomic Safety and Licensing Appeal Board's Decision dated May 24, 1988 ( ALAB-89 2 ) , affirming the Atomic Safety and Licensing Board's February 17, 1988, MEMORANDUM AND ORDER renew-ing low power authorization for Seabrook Station.1 I. Summary of Decision of Which Review is Soucht.

In ALAB-892, the Appeal Board rejected NECNP's argument that the Licensing Board had no authority under Commission regulations or decisions to permit the authorization of low power operation while onsite safety contentions remain unresolved.2 The Appeal 1 .Public Service Co. of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-8 9 2 (May 24, 1988), 27 NRC .

Hereinafter, all administrative decisions in the Seabrook pro-ceeding will be cited only by number and date. The agency's cif.ation system denotes decisions of the Licensing Board Panel as "LBP" decisions, of the Appeal Board as "ALAB," and the Commis-sion decisions as "CLI."

8806170000 880613 PDR ADOCK 05000443 0 PDR 0)

-2 -

Board declined to address NECNP's argu.nent that the Licensing Board had no authority under the Atomic Energy Act to authorize low power operation prior to the resolution of pending conten-tions, on the grounds that only the Commission had the authority to entertain a claim that a Commission regulation -- namely, 10 C.F.R. 5 50.57(c) -- should be disregarded as inconsistent with a statutory command.3 The Appeal Board also rejected NECNP's argu-rent that the Licensing Board applied an inappropriate standard for authorizing low power operations.

II. Statement of Matters of Fact and Law Raised by this Petition.

On October 1, 1987, in ALAB-875, the Appeal Board vacated the Atomic Safety and Licensing Board's March 25, 1987 partial initial decision (P.I.D.) in the onsite emergency planning and safety issues phase of the Seabrook operating licensing proceed-ing,4 on the grounds that the Licensing Board erred in denying the admission of several NECNP contentions, including Contention I.V (Steam Generator Tube Inspection), and IV (Biological Fouling of Cooling Systems).5 The Appeal Board also reversed the (continued) 2 A LAB-8 3 2, slip opinion at 15-16.

3 Id. at 7-8 (footnotes omitted). It should be noted that while NECNP believes the Commission's interpretation of 10 C.F.R. s 50.57(c) is inconsistent with the Atomic Energy Act, we do not consider the regulation itself to be inconsistent with the Act.

4 LBP-87-10, 25 NRC 177.

5 A LAB-8 7 5, 26 NRC 251, 275.

l '

-3 -

P.I.D's reasonable assurance finding for Applicants with respect to NECNP Contention I.B.2 (Environmental Qualification of RG58 Coaxial Cable).6 ALAB-875 remanded NECNP Contentions IV and I.V to the Licensing Board, and order the Licensing Board to provide an additional explanation of its decision regarding environmental qualification of the RG-58 coaxial cable.7 ALAB-875 also directed the Licensing Board to make a new determination about the appropriateness of low power operations in light of these remanded contentions.8 Between November, 1987 and February, 1988, NECNP Contentions IV and I.V were admitted and litigation proceeded before the Licensing Board.9 While discovery was still underway on these remanded contentions, the Licensing Board issued an order requesting that Applicants, the NRC Staff, and NECNP file briefq regarding the appropriateness of reauthorizing low power opera-tion prior to the completion of the remanded proceeding.10 6 Id.

l 7 Id. On April 25, 1988, after several rounds of briefing failed to satisfy the Appeal Board's concerns with respect to the adequacy of the P.I.D., the Appeal Board remanded NECNP Conten-tion I.B.2 to the Licensing Board. A LA B-8 91, slip opinion 25-26 (April 25, 1988).

l 8 Id. at 276.

9 NECNP focused much of its discovery under NECNP Contention IV on the adequacy of Applicants' program for controlling micro-biologically induced corrosion (MIC), one of the detrimental effects of fouling of nuclear power plant cooling systems.

10 ASLB Order dated Nove 'r 27, 1987 (unpublished).

l l

NECNP filed an opposition to low power authorization, arguing that the Atomic Energy Act prohibited low power operation prior to the resolution of all pending onsite safety contentions,ll and that 10 C.F.R. 5 50.57(c) supplied no authority for authorizing low power operation prior to the resolution of contested, onsite safety issues.12 NECNP also argued that unless and until Applicants file a petition for a regulatory waiver under 10 C.F.R. 5 758(b) of the General Design Criteria (GDC) that are the subject of NECNP's unresolved onsite safety contentions, no authorization to operate at low power can be issued.13 On February 17, 1988, the Licensing Board issued a Memc.andum and Order renewing low power authorization for the Seabrook plant pursuant to 10 C.F.R. 5 50.57(c) on the ground that the safety issues raised by NECNP's two, remanded conten-tions "were not relevant to low power operations."14 The Licens-11 "NECNP's Brief in Opposition to Renewal of Authorization to Operate at Low Power," dated January 4, 1988. NECNP noted for the record, but did not reiterate its argument that the 10 C.F.R. 5 50.47(d) violated the Atomic Energy Act's guarantee of a prior hearing to the extent it permitted low power operation prior to hearing and resolving Interveners' offsite emergency planning contentions, since the Appeal Board had previously expressly ruled that only the Commission had authority to address this issue. See ALAB-87 5, 26 NRC at 256 (1987) and ALAB-8 65, 25 NRC at 439 (1987).

12 "NECNP's Brief in Opposition to Renewal of Authorization to Operate at Low Power," dated January 4, 1988, at 15.

13 Id. at 25-27.

14 MEMORANDUM AND ORDER (Renewal of Low Power Authorization; Denying NECNP's Motion for Leave to File A Reply), ASLBP No. 88-5 5 8 O LR , dated February 17, 1988, at 18. However, the Licens-ing Board expressly noted that low power operation must await

r-l 1

ing Board refused to consider NECNP's request for an opportunity to reply to Applicants' and the Staff's allegations of fact and opinion after the completion of discovery,15 on the grounds, inter alia, that much of NECNP's pending discovery related to MIC, which was not within the scope of NECNP Contention IV,16 and therefore such information would not have been relevant in any event.17 On March 3, 1988, NECNP filed a timely notice of appeal of this decision. In its supporting brief, NECNP reiterated its earlier arguments regarding the legal authority and standards for authorizing low power operation.18 On May 24, 1988, the Appeal (continued) resolution of the emergency notification contention remanded by the Appeal Board in ALAB-883, 27 NRC (February 3, 1988). Id.

15 "NECNP's Motion for Leave to File a Reply to Applicants' and the Staff's Briefs Regarding Low Power Operations," dated January 14, 1988, at 6.

16 The Licensing Board decision that MIC was not within the scope of NECNP Contention IV was issued on February 17, 1988, the same day as the Order renewing low power authorization.

17 LBP-88-6, slip opinion at 16-17. The Licensing Board sub-sequently dismissed NECNP Contention IV. ASLB Memorandum and Order dated May 12, 1988 (unpublished). NECNP's motion for leave to file a notice of appeal of this dismissal is currently pending before the Appeal Board.

18 "NECNP's Brief in Support of Appeal of Memorandum and Order Renewing Authorization to Operate at Low Power," dated April 7, 1988. Again, NECNP noted for the record, but did not reiterate its argument that the 10 C.F.R. S 50.47(d) violated the Atomic Energy Act's guarantee of a prior hearing to the extent it permitted low power operation prior to hearing and resolving Interveners' offsite emergency planning contentions, since the Appeal Board had previously, in ALAB-875, 26 NRC at 256 (1987) and ALAB-8 65, 25 NRC at 439 (1987), expressly ruled that only the Commission had authority to address this issue. Id., at 5 note

Board affirmed the Licensing Board's renewal of low power author-ization.19 NECNP took the instant appeal.

III. Statement of Why Re-Authorization of Low Power Operation is Erroneous.

NECNP seeks Conmission review of the following aspects of the Licensing Board's renewal of low power operation, and the Appeal Board's affirmance of the same:

A. Section 50.57(c) Supplies No Authority For Low Power Operation Prior to the Resolution of All Contested Onsite Safety Issues The regulatory history underlying 10 C.F.R. S 50.57(c), and S 50.47(d), indicates that the Licensing Board had no authority under 10 C.F.R. S 50.57(c) 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 norma-tive procede of petitioning for regulatory waivers. Rather, both the plain la.,guage and the regulatory history of 5 50.57(c) indi-cates that the purpose of f 50.57(c) was simply to relieve the Licensing Board of the obligation 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 S 50.57(c) vitiates the Licensing Board's obliga-(continued) 7.

19 A LA B-8 9 2 , 27 NRC __ (May 24, 1988).

l -

tion 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 orotective of the parties' rights to a p-ior hearing on con-tested issues, not to abrogate them altogether.

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 Lichtina Co. (Shoreham Nuclear Power Sta-tion, Unit 1), CLI-84-21, 20 NRC 1437 (1984), in which LILCO sought a low power license under S 50.57(c). In an earlier deci-sion, 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 exemption under 10 C.F.R. S 50.12(a).20 In a revealing SECY paper responding to this decision, the Commission staff recognized that a Licensing Board could not "distinguish more carefully among safety require-ments for fuel loading and other operational phases,... without extensive changes to the regulations."21 To the extent that Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),

CLI-84-21, 20 NRC 1437 (1984) suggests that S 50.57(c) does 20 Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984) 21 SECY-84-290A, at 2.

-8 -

supply such authority, this statement is incorrect.

B. Low Power Authorization Prior to Resolution of Contentions Violates the Atomic Enerav Act.

Section 189(a) of the Atomic Energy Act prohibits authoriza-tion of low power ope ation prior to completion of public hear-ings on all issues material to full power licensing. Union qf Concerned Scientists v. NRC, 735 P.2d 1437 (D.C. Cir. 1984).

This view is supported by the legislative history of the expired Temporary operating Licensing Authorization22 and the "Sholly Amendment,u23 which demonstrate that on the two prior occasions when Congress perceived a need to permit low power operation before licensing hearings were complete, it did so by express statutory language, and gave the Comission only temporary authority to do so. Because NECNP has not yet received a full hearing on its still pending onsite safety contentions,24, and on its pending offsite emergency planning contentions, no low power license may be issued until the satisfactory resolution of those contentions.

C. The Licensing Board Applied an Erroneous Legal Standard in Re-authorizina Low Power Operation.

The history of the decision in Shoreham makes clear that the only available avenue for Applicants to obtain low power author-22 42 U.S.C. S 2242, which expired December 31, 1983.

i 23 42 U.S.C. S 2239(a), Pub. L.97-415 5 12(a), 96 Stat. 2073 (January 4, 1983).

24 NECNP Contention I.B.2, and N.CNP Contention IV (micro-biologically induced corrosion).

ization prior to the resolution of NECNP's unresolved, romanded safety contentions is to apply for an exemption under 10 C.F.R. S 2.758(b) of the General Design Criteria that are placed at issue by these contentions. Otherwise, the litigation of all outstand-ing contentions must be completed before Applicants may be authorized to operate Seabrook at any power level.25 There can be no test for "relevance" to low power other than the fact that a safety contention has been admitted for litigation. In requir-ing NECNP to meet the heavy burden of showing that its conten-tions "would adversely impact upon public health and safety if the plant were to be reauthorized to operate only up to 5% of rated power,"26 the Licensing Board unfairly and illegally shifted the burden of proof from Applicants to NECNP.27 Accor-25 This litigation must be completed and resolved in favor of Applicants. At this writing, litigation of NECNP Contention I.B.2 is barely underway before the Licensing Board, and the Licensing Board's adverse ruling that microbiologically induced corrosion was not within the scope of NECNP Contention IV is on appeal.

26 LBP-88-6, 27 NRC 245, , slip opinion at 13, 27 The Licensing Board's decision does not even comport with the standard for issuing exemptions. While the SECY paper underlying the Shoreham decision suggests that even if the Cemmission does have some greater "flexibility" in issuing exemptions in the con-text of low power authorization, this flexibility is much nar-rower than that applied by the Licensing Board. This SECY paper makes clear that a regulatory requirement "cannot be considered inapplicable merely because, as applied to fuel loading or low-power testing, it is logical but arguably excessive. SECY 290A, at 26. Neither Applicants nor the Staff presented evidence that NECNP's remanded contentions were not relevant to safety.

Rather, they focused on the lesser degree of hazard presented by low power operation, and the Licensing Board plainly relied on this in making its determination. See e.a. LBP 88-6, at 8 (quot-

. __ _ , - ,_ _- _ - . , . . _ . _ _ _ _ . . - _ _ - ._ ,_, --_. --.. ,-. , - _ . - . - - _ _ _ - . _ ~

l

- dingly, the standard applied by the Licensing Board was improper.

IV. Why Commission Review Should Be Exercised.

Both the Appeal Board and the Licensing Board have reiterated that only the Commission has authority resolve the issues raised by this appeal, as they involve review of prior Commission decisions interpreting 10 C.F.R. S 50.5?(c), and chal-lenge the validity of Commission regulations SS 50.47(d) and 50.57(c). Since these issues may ultimately be resolved by the courts, it is important that the Commission's views be stated.

Resp _egtfully submitted, WM-eg f"fw- ,

f  %-r_} J An rea Ferster Diane Curran HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 (continued) ing Masnik affid., pp. 6-9).

Moreover, the Licensing Board's failure to even address the issue of microbiological 1y induced corrosion prior to authorizing low power operation, an issue that NECNP believes to be within the scope of remanded Contention IV, or to permit NECNP a meaningful opportunity to present evidence on this important safety issue, constitutes reversible error. See Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), 12 NRC 233, 232 n.1 (1980) (Where safety is at issue, special care must be exercised to allow all parties a full opportunity to be heard.)

.o N

.w' 6c 0 CERTIFICATE OF SERVICE E

I certify that on June 13, 1988, copies of the foregoing D 14 P6:22 pleading were served by first-class mail on all partiesgAisted on the attached service list. -~ 0 - L-

' f fg,[t V,;r Andrea Forster

(

L

,\ '*

SEABROOK SERVICE LIST -- ONSITE COMMISSIONERS Sheldon J. Wolfe, Chairman 155 Washington Road Office of General Counsel Alan S. Rosenthal, Chairman U.S. NRC Rye, New Ilampshire 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 liarbour 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 llall,25 liigh Road Dr. Emmeth A. Luebke Board of Selectmen Newbury, MA 01951 Lando W. Zech, Chairman

'5500 Friendship Boulevard Town of Salisbury, MA 01950 U.S. NRC Apartment 1923N George Dana Bisbee, Esq. Washington, D.C. 20555 Chesy Chase, MD 20815 Senator Gordon J. Ilumphrey Geoffrey M. liuntington, Esq.

U.S. Senate Office of the Attorney General Kenneth C. Rogers, Com-Atomic Safety & Licensing Washington, D.C. 20510 State flouse Annex missionce Board Panel (Attn. Tom Burack) Concord, Nil 03301 U.S. NRC U.S. NRC Washington, D.C. 20555 Washington, D.C. 20555 Selectmen of Northampton Allen Lampert Northampton, New if amp- Cisil Defense Director Kenneth M. Carr, Com.

Atomic Safety & Licensing shire 03826 Town of Brentowood missioner App:al Board Panel Exeter, Nil 03833 U.S. NRC U.S. NRC unator Gordon J. Humphrey Washington, D.C. 20555 Washington, D.C. 2055.i 1 Eagle Squ tre, Ste 507 Richard A,llampe, Esq.

Concord, Nil 03301 Hampe and McNicholas Thomas M. Roberts, Com-Docketing and Service 35 Pleasant Street missioner U.S. N RC Michael Santosuosso, Concord, Nil 03301 U.S. N RC Washington, D.C. 20555 Chaliman Washington, D.C. 20555 Board of Selectmen Gary W. Holmes, Esq.

Mrs. Anne E. Goodman JewellStreet, RFD #2 Holmes & Ellis Frederick M. Bernthal, Com-Board of Selectmen South if ampton, NH 03842 47 Winnacunnent Road missioner 1315 New Market Road flampton, NII 03&42 U.S. NRC Durham, Nil 03&42 Judith II. Mizner, Esq.

Washington, D.C. 20555 Silverglate, Gertner, et al. William Armstrong William S. Imrd, Selectman 88 Broad Street Cisil Defense Director Town llall-- Friend Street Boston, MA 02110 10 Front Street Amesbury, MA 01913 Exeter, Nil 03833 Rep. Roberta C. Pcvear Jane Doughty Drinkwater Road CaMn A. Canney SAPL llampton Falls, Nil 03844 City Manager, City liall 5 Market Street 126 Daniel Street Portsmouth, NH 03801 Phillip Ahrens, Esq. Portsmouth, Nil 03801 Assistant Attorney General Carol S. Sncider, Esquire State liouse, Station #6 Matthew T. Brock, Esq.

Assistant Attorney General Augusta, ME (M333 Shaines & McEachern 1 Ashburton Place,19th Floor P.O. Box 360 Boston, MA 02108 Thomas G. Dignan, Esq. Maplewood Avenue R.K. Gad II, Esq. Portsmouth, Nil 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 l North flampton, Nil 03826 East Kensington, Nil 03827 Robert A. Backus, Esq.

. J.P. Nadeau Backus, Meyer & Solomon Charles P. Graham, Esq.

T ,wn of Rye 111 lowell Street McKay, Murphy and Graham Manchester, Nil 03105 1 m M ain Strcci Amesbury, MA 01913 Gregory A. Herry, ISq.