ML20196G891

NRC Staff Response to New England Coalition on Nuclear Pollution Petition for Review of ALAB-892.* Petition Should Be Denied.Certificate of Svc Encl

ML20196G891
Person / Time
Site:	Seabrook
Issue date:	06/28/1988
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#388-6644 ALAB-892, OL-1, NUDOCS 8807060051
Download: ML20196G891 (15)

Text

_ - - _ . . - -

S fig . . . . _

i

(

Of fgTED UNITED ST ATES-OF AMERIC A g #130 All 49

. NUCLE A R REGUL AT OR Y COMMISSION.

y .

p ,r . .

O ' '

. - B EFO RE T HE C OMMISSION ~ Y

(

.In the Matter of )

Docket Nes. 50-443 OL-01 PUfillC SERVICE > COMPANY OF 50-444 O L-01 NEW H AMPSHIRE, et al.

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

KRC ST Af f RESPONSE TO NEW EilGL AND COALITION 0N EUCLE AR POLLUTION'S PETITION FOR REVIEW 0F AL AB-892 i

I l

. Gregcry Alan Berry Counsel for N R C Staff June 28,1908 l 880706o051 R 880629 g ADOCK 05000443

. D p

f- p , -r - - r - w-, , .

. , . , , _ . , , , , _ _ . _ ,,.,_,,....,__,,,,.y., , , , , , _ . , , ,,

6 rp

. UNITED ST ATES OF AMERIC A NUCLE AR REGUL ATORY COMMISSION B E F O R E ,T,H, E , ,C,0,M M I S S I,0 N In the Matter of )

Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 O L-01 NEW H AMPSHIRE, et H.

(On-site and Safety Emergency)

Issues Planning (Seabrook Station, Units 1 and 2)

NRC ST AFF RESPONSE T0 r EW ENGL AND C0 ALITION ON NUCLEAR POLLUTION'S PETITION FOR REVIEW 0F ALAJ-392 Gregory Alan Berry Counsel for N R C Staff June 28,1988

. ~ . . . ~ _ - - - - _ _ _ _ . . . _ - _ . . . , , - . , _ , , -.m,__,--____..__ __._ __ .. , - . . - _ . _ .

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSICN B EFORE, ,THE_ COMMISS,1,0N In the Matter of )

) Docket Nos. S0-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW HAMPSHIRE, et al. On-site Emergency Planning (Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO NEW ENGLAND C0AlITION ON N,UCLEAR P0,L_L,UTJ,0,N'S PE.TJTJON,,F,0R,, REVIEW 0F ,A, LAB-892 INTR 000CTI,0N On June 13, 1988, the New England Coalition On Nuclear Pollution (NE C N P), joined by the Seacoast Anti-Pollution League (S APL) 1/,

petitioned the Commission t; review the Appeal Board's decision in AL A B-892, 2/ N EC NP Petition For Review of A L A B-892 (June 13,1988)

(" P etitio n") . In that decision, the Appeal Beard affirmed L8P-88-63 ,/, 'n which the Licensing Board held that neither of the remanded contentions #/ then pending before the Board posed a bar to the

-1/ See Joinder Of Seacoast Anti-Pollution League In New England Coalition On Nuclear Pollution's Petition For Review cf ALAB-892 (June 26, 1988).

-2/ Public Service Company of New Hart and 2),3 LAB-892, 27 NYC"Ufa'pshire y 74',' ~1988) .(Seabrook Station, Units 1 3/ Public service Com and 2),' LBF-F876','pany of New Hairpshire (Seabrook Station, Units 1 2TWC743"(T9887."'

-4/ NECNP Contention I.V (relating to inservice inspection of steam

. generator tubes) and NECNP Contention IV (concerning blockage of (FOOTNOTE CONTINUED ON NEXT PAGE)

2 reauthorization of low power operations at the Seabrook Station. The Appeal Board upheld the Licensing Board because "10 C.F.R. 9 50.57(c)

,' allows the authorization of low-power operation so long as no safety issues pertaining to such operation remain unresolved;" the record contained substantial ur. contradicted evider.ce that neither of the remanded contentions then pending before the Board "bears upon low-power o p eratio n . " AL A B-892, slip op. at 15-16. As explained below ,

Commission review of AL A B-292 is not warranted. AL AB-892 does nothing acre than reaffirm what has long teen the case: that a low power license may be authorized prior to the resolution of all issues material to full power where none of the unresolved issues are relevant to low power operations . Consequently , N E C N P's petition does not raise "an important matter that could significantly affect the environment, the public health and safety" or present an important procedural issue or question of public policy." Accordingly, the Petition should be denied.

_(EG,AL,ST,ANDARDS Petitions for review, and responses in opposition, must satisfy the requirements of 10 C.F.R. 6 2.786(b)(2). Those requirements are:

(i) A concise summary of the decision or action of which review is sought; (ii) A statement (inclu ding record citation) where the matters of fact or la w raised in the petition for review were previously raised before the A tomic (F0OTNOTE CONTINUED FROM PREVIOUS PAGE)

- cooling systems caused by the accumulation of aquatic organisms and debris) were remanded for further litigation by the Appeal Boart. in Public Service Com

- and 2), 'AEAF'87Y,'pa,ny of New 26 NE El',' '276 Hamp'

(~1%7) . shire (Seabrook Station, Units 1

=

. Safety and Licensing Appeal Board and, if they were not why they could not have. been raised; (iii) A concise statement why in the petitioner's view the decision or action is erroneous; and (iv) A concise statement why Commission review shculd be exercised.

10C.F.R.52.786(b)(2)(1-iv). The Staff will address each of these points seriatim.

DISCUSSION A. Summary of ALAB-892 ALAB-892 is the Appeal Board's decision affirming the Licensing Board's order of February 17, 1988, which held that the pendency of the two contentions remanded by the Appeal Board in ALAB-875 did not constitute a bar to the reauthorization of low power operations at the Seabrook Station. In ALAB-875 and CLI-87-13 SI,theLicensingBoardhad been directed by the Appeal Board and the Commissicn to "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 aust await further decisions." CLI-87-13, 26 NKC at 405; see ALAB-875, supra, 26 NRC at 276. On November 27, 1987, the Licensing Board issued an order directing the parties to file briefs addressing these issues. Memoran,d,um,0,r. der (BriefingSchedule)at1-2 (November 27,1987).

In its Lrief, the Staff explained why neither of the remanded contentions ccostituted a bar to the reauthorization of lcw power Public Service Company cf New Ham] shire (Seabrook Station, Units 1 5/

- ^

and 2)', Cl.T-B7-13, 26 hPf ~4~0'0 T1H7p -

operations. See NRC Staff Response To Licensing Board Order Of November

. 27, 1987, passim (January 12,1988). Specifically, the Staff presented the affidavits of experts in the issues raised by the renanded contentions which demonstrated that the dangers alleged by the remanded contentions will not arise during low power operations. Accordingly, the Staff contended that neither of the remanded contentions is relevant to the activity to be reauthorized. The Staff explained that under 10 C.F.R.

$ 50.57(c), a license to conduct activities short of full power operations may be authorized prior to the con.pletion of the full pcwer licensing proceeding if ncte of an intervenor's contentions is "relevant to the activity to be authorized." Id. at 2-7. In their brief, Applicants took a similar approach. See Applicants' Brief In Support Of Low Pcwer Operations, passim (January 4, 1988).

NECNP, on the other hand, did not oppose the reauthorization of low power operations on the ground that the remanded contentions were "relevant to the activity to be authorized" as it could have pursuant to section 50.57(c). Instead, NECNP's brief was devoted mainly to the argument that the Cortmission and the Licensing Board lacked the legal authority to authorize the issuance of any type of license prior to the l

completion of the full power licensing proceeding. See NECNP Brief In l

Opposition To Renewal Of Authorization To Cperate At Low Power, passim l

(January 4, 198P). This line of argument had been rejected by the Appeal l

Board even before NECNP filed its brief. See ALAB-875, supra, 26 NRC at l

256; ALAB-865, 25 NRC 430, 439 (1987).

l On February 17, 1988, the Board issued an order rejecting NECNP's arguments that neither the Scard nor the Conmission had the legal 1

l

. authority to authorize low power operations prior to the completion of

. full power operating license proceeding. LBP-88-6, 27 NRC at 251-52. The Board agreed with the Staff and Applicants that neither NECNP Contention I.V or NECNP Contention IV were relevant to low pcher operations "inasmuch as the safety concerns raised therein would not adversely impact upon the public health and safety if Seabrook, Lait 1, were to be authorized to operate only up to 5% of rated power." 27 NRC at 255. The Licensing Board stated, however, that "we cannot give effect to our renewed authorization in light of ALAB-883 . . . and thus we do not authorize the Director of NRR, upon making the findings required by 10 C.F.R. 650.57(a),toissuethelowpowerlicense."5/ The Board's factual findings and legal conclusions were upheld in their entirety by the Appeal Board in ALAB-892. See ALAB-802, passim.

B. The Matters Raised In The Petition Were Raised Below In its petition, NECNP challenges the Appeal Board's determinations that (1) 10 C.F.R. $ 50.57(c) authorizes low power operation prior to the resolution of all contested onsite safety issues; (2) the Licensing Board applied the correct legal standard in detern.ining whether either of the contentions then pending must be resolved before low power operation could be reauthorized; and (3) low power authorization prior to the resolution

~6/ In Public Service Com)any of New Hampshire (Seabrook Station, L' nits 1 and 2), AEAF-F87,"27 WC '4Y,"3Y-3F T1?tBT, the Appeal Board held that no low power license could be issued to the Seabrook Station in the absence of finding by the Licensing Board that adequate means have been established to provide early notification and clear instruction l

to tne Massachusetts portion of the Seabrcok emergency planning zone.

Applicants' petition for review of ALAB-883 is pending before the j Commission.

I

-G-of all issues material to full pcwer licenses is nct a violation of the Atomic Energy Act. Petition at 7-10. NECNP raised each of these atgun:ents below. See NECNP Brief In Support Of Appeal Of Memorandum And Crder Per, ewing Authorization To Cperate At Lcw Pcwer, passin! (April 7, 1988).

C. ALAB-892 Contains No Error Of Fcct, Law,,,0r, Po,1, icy The Appeal Board correctly interpreted section 50.57(c) to permit the issuance of a license for activities shcrt of full power operation pr for to the resolution of all issues material to full power operation. See ALAB-892, slip op. at 9-11. For more than seventeen years it has been the express pclicy of the Commission that, under specified conditions, activities short of full pcwer operation n.ay be authorized prior to the issuance of a full power license. For example, in the preamble acccapanying proposed section 50.57(c), the Conmission stated that "the prcposed anendment to ! 50.57(c) of Part 50 would permit the atomic safety and licensing board, while a proceeding is pending, upon motion in writing, to consider and act upon such request for low power testing." 35 Fod. Reg. 16687 (October 28,.1970). The Comission reaffirmed this point in the preamble adopting the final rule, stating again that the purpose of l section 50.57(c) is "to provide for authorization, by atomic safety and l

l licensing boards, of low power testing and cperation under specified conditions." See 36 Fed. Reg. 8861 (May 14, 1971). In fact, the Commission noted that because licensing boards already possessed the l - authority conferred by section 50.57(c), the formal adoption of section l

50.57(c) "would trerely clarify existing authority." 36 Fed. Reg. at 8862.

The Comission and its adjudicatory boards consistently have interpreted

i I

s section 50.57(c) to permit activities short of full power operation to be conducted in advance of the issuance of a full power ifcense. E3. ,

Maine Yankee (Mair,e Yankee Atomic Power Station), CLI-72-22, 5 AEC 2 (1972); Long I,sl,and,Lightigg,,Ccypa,ny (Shoreham Nuclear Power Station, Unit 1),CLI-84-21,20NRC1437,1439(1984); C,uquesne LiS ht Company (Beaver Valley Power Station, Unit 1), LBP-76-3, 3 NRC 44, 45 (1976);

Conncowealth Edison Company (Braidwocd Nuclear Generating Station, Units 1 and ?), LEP-86-31, 24 NRC 451 (1986). ALAB-892 therefore is consistent with long standing Conmissicn policy and case law. E For these reasons, the Appeal Board was ccrrect in holding that "it is not every contention that need Le heard or decided ptfor to the authorization of a low power liccrse. Rather , in so trany words, the section requires a hearing cnly on those contenticns ' relevant to the activity to be authorized [,]'" M. ,

slip cp. at J0.

NECNP also contends that ALAB-892 is in ertcr to the extent it sanctions the issuance p_endente lite of a low pcwer license to an applicant that has not first obtained an exemption ft om the regulatory requirerrent

~

at issue in the pending contention. See Petition at 8. NECNP is incorrect. ALfF-892 is in accord with Lcrg I,s,16nd Light,ing, Cenpany (Shoreha'r Fuclear Pcwer Station, Unit 1), CLI-84-21, 20 NRC 1437, 1439 (1984) which holds that there is no need for an applicant to obtain an exenptior, where the regulatory recuirenent i in question is inapplicable to the activity to te authorized. Conpare_ALAB-892,slipop.atIc,_jth, NECNP does not argue that ALAB-892 is inconsistent with Centrission

~7/

policy or case law. See Petition at 7.

l

-C-Shoreham, supra at 20 hRC at 1439-40. The Licensing Board and the Appeal Board applied the correct legal standard and concluded that because the contentions then pending before it did not raise a safety matter with regard to low pcwer operation, they were not relevant to the activity to be authorized. EI For this reason, NECNP's claim that the Board utilized an incorrect standard to reauthorize Icw power operation lacks merit.

Finally, the Appeal Board declined to reverse the Licensing Board on the ground that sectier 189a of the Atomic Energy Act prohibits the issuance of any type of operating license prior to the resolution of all issues niaterial to full power operation. ALAB-892, slip op at 7-8. This determination was correct because, as the Appeal Board observed, adjudicatory boards "lack the power to entertain a claim that a Commission regulation shculd be disregarded as inconsistent with a statutory command." Id. , slip op. at 8; accord 10 C.F.P. Q 2.758(a).

D. Conmissien Pev,i,ew e ,

Js, fic,t, k'ar, rant,e,d As 10 C.F.R. G 2.786(b)(4) makes clear, "the grant or denial of a petition for review is within the discretion" of the Coamission. The Conmission has indicated that review will not be granted in the absence of 1

a showing that the case "involves an important matter that could significantly affect the environment, public health and safety, . . .

involves an important procedural issue, or otherwise raises important questionsofpublicpolicy[.]" 10 C.F.R. 4 2.786(b)(4)(i). Further, a

~8/

It should be noted that NECNP did not challenge below the factual underpinnings of the Licensing Board's finding that neither of the remanded contentions raised a safety issue with regard to low power l

I operation.

l

(

l l

L

l

-9 petition for review "of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a

~

factual issue necessary for decision in a clearly errcneous manner contrary to the resolution of that sarre issue by the Atcmic Safety and Licensing Board." 10 C.F.R. 5 2.786(b)(4)(ii).

NECNP does not argue that its petition involves an irr.portant matter which could significantly affect the public health and safety or raises an important question of policy, the criteria against which the Corrmission determines whether a petition for review should be granted. See 10 C.F.R.

s 2.786(b)(4)(i). Instead, NECNP states only that because validity of sections 50.57(c) and 50.47(d) and the Corrmission's decisions interpreting those sections "may ultimately be resolved by the courts, it is irrportant that the Corrmissicn's views be stated.- Petition at 10. This purpose does not satisfy the standards set forth in 10 C.F.R. s 2.786(b).

Moreover, as explained in the preceding section of this response, the Comissicn's views on the issues for which review is scught already are matters of public record. See e.g. , Maine Yankee, supra, 5 AEC at 2-3; Shcreham, supra, 20 NRC at 1439-40; 36 Fed. Reg. at 8861-62; 35 Fed. Reg.

16687-88,1/ Accordingly, the petition should be denied, t

4

-1/ NECNP suggests, withcut analysis, that section 50.57(c) has been superseded by the decision in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984)T Fe'tYt'ioii'a't"8'. hTChP is incorrect.

Nothing in the Union of Concerned Scientists decision prohibits the

~

authorization oTToii^ power operati'o'ns in this proceeding when all contested issues relevant to low power operation have been resolved.

Moreover, it shculd be noted that that decision was issued five rtonths before the Corrmission's S_horeham decision (CLI-84-21) in which

. the Corrmission again made clear that section 50.57(c) permits, where appropriate, the authorization of low power operation prior to the

resolution of all issues traterial to full power operation.

f

i-4 10 -

CONCLUSION For the reasons stated herein, the Petition for Review of ALAB-892

' filed by the New England Coalition Cn Nuclear Power shculd be dented.

Respectfully submitted, f

( flokBerry Grego Ala YA Ccuns for {L'R C Staff '

Dated at Rockville, Maryland this 27th day of June 1988 4

0

--.-e-,-. - - -

r-4 DOCKEU USHHe

. UNITED ST ATES OF AMERIC A NUCLEAR PEGUL ATORY COMMISSION M JJN 30 SII "d9

. 0FFICE 3: %,2. n v B EFO RE T HE C OMMISSION u0CXII , , ryg In the Matter of )

Docket Nos. 50-443 O L-01 PUBLIC SERVICE COMPANY OF 50-444 O L-01 N E W H A M P S HIR E , ej ,al . On-site Emergency Planning

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

C E R TI FIC A T E O F,,S E RJ,1,C E I hereby certify that copies of "N R C ST AF F RESPONSE TO NEW ENGLAND C0 ALITION ON NUCLE AR POLLUTIONS'S PETITION FOR REVIEW 0F ALAB-892" 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 mail system, this 28th day of June 1988.

Sheldon J. Wolfe, Esq. , C hairman* Atomic Safety and Licensing Administrative Judge Board

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

• Docketin g and Service Sectio n

• 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, D C 20555 Dr. Emmeth A. Luebke Thomas G. Dignan, Jr., Esq.

Administrative Judge Robert K. Gad, III, Esq.

4515 Willard Avenue Ropes & Gray Chevy Chase, Marylaad 20815 225 Franklin Street Boston, M A 02110 Atomic Safety and Licensing H . J . Fly n n , E s q .

Appeal Panel

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

, Washington, DC 20472

6

. Philip Ahren, Esq. Calvin A. Canney Assistant Attorney General City Hall

. Office of the Attorney General 126 Daniel Street State House Station Portsmouth , N H 03801 Augusta, MF 04333 Mr. Angie Machiros, Chairman Carol S. Sneider, Esq. Board of Selectmen Assistant Attorney General 25 High Poad Office cf the Attorney General New bury, M A 09150 One Ashburton Place,19th Floor Boston, M A 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, N H 03833 Ellyn R . Weiss , Esq . William Armstrong Diane Curran, Esq. Civil Defense Director Harmon & Weiss Town of Exeter 2001 S Street, N W 10 Front Street Suite 430 Exeter, N H 03833 Washington , D C 20009 Robert A. Backus, Esq. Gary W. Holmes, Esq.

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

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

Charles P. Graham, Esq. Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine & Good 100 Main Street 88 Board Street Amesbury, M A 01913 B oston , M A 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen R F D #1, B ox 1154 Town Office l

• Kensington, NH 03827 Atlantic Avenue North Hampton, N H 03870

, William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, M N 09150 Amesbury, M A 01913

- Mrs. Anne E. Goodman, Chairman Michael Santosuosso, Chairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 l

Hon. Gordon J. Humphrey Ashod N. A mirian, Esq. l United States Senate Town Ccunsel for Merrimac 531 Hart Senate Office Building 376 Main Street Washington, O C 20510 Haverhill, P A 08130 k &" ' ' " " '

Gregory' la n~ ~ erry Cou nsel 3r N : Staff f

f l

l

_ _ _ _ _ _ _ _