ML20197B340

Brief Opposing Appeal by Atty General of State of Ma Re ASLB 861007 Order Granting Applicant Motion for Authorization to Issue License to Conduct Fuel Load & Precriticality Testing.Certificate of Svc Encl

ML20197B340
Person / Time
Site:	Seabrook
Issue date:	10/23/1986
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-1270 OL-1, NUDOCS 8610280368
Download: ML20197B340 (16)

Text

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Dated: OctobeOOSl3E,TES986 U5flRC UNITED STATES OF AMERICA

~86 0CT 27 P12:25 NUCLEAR REGULATORY COMMISSION

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t c; before the '. j ATOMIC SAFETY AND LICENSING APPEAL BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 '

NEW HAMPSHIRE, et al. ) 50-444-OL-1

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, (Seabrook Station, Units 1 and 2) )

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l I ON APPEAL BY THE ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS FROM AN ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD ISSUED OCTOBER 7, 1986 GRANTING APPLICANTS' MOTION FOR AUTHORI-ZATION TO ISSUE LICENSE TO CONDUCT FUEL LOAD AND PRECRITICALITY TESTING l

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BRIEF OF APPLICANTS Thomas G. Dignan, Jr.

t R. K. Gad III Kathryn A. Selleck Ropes & Gray (

225 Franklin Street Boston, MA 02110 Counsel for Applicants h

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i STATEMENT OF PRIOR PROCEEDINGS AND FACTS Proceedings in the above-numbered dockets are currently ongoing before two Atomic Safety and Licensing Boards. On August 22, 1986, the applicants filed before one of these 4

Licensing Boards, the so-called "On-Site Board", (hereafter referred to as the " Licensing Board") a " Motion for Authorization to Issue License to Conduct Full Load and Precriticality Testing", (" Applicants' Motion"). This motion sought permission to load fuel into Unit No. 1 of Seabrook Station and to conduct certain tests, the carrying out of which would not require the reactor to go critical.

In essence, Applicants argued that no pending contention before either of the Atomic Safety and Licensing Boards was relevent to the activity for which authorization was sought. See 10 C.F.R. $ 50.57(c).

Responses to the motion were received from a number of participants, including the Attorney General of the Commonwealth of Massachusetts (" Mass AG"), a 10 C.F.R.

$ 2.715(c) participant. In opposing Applicants' Motion, Mass AG asserted, inter alia, that:

,. " Applicants have not complied with the provision of 10 C.F.R.

$ 50.33(g) requiring the submission of " radiological response plans of state and local governmental entities in the United States that are wholly or partially within the plume exposure pathway Emergency Planning Zone (EPZ), as well as the plans of state governments wholly or

partially within the ingestion pathway EPZ." Insofar as the submission of all emergency response plans is a requirement of the license application, no license to conduct any activity may be issued until such regulation is satisfied." Attorney General Francis X. Bellotti's Objection to Applications Motion for Authorization to Issue License to Conduct Fuel Loan and Precriticality Testing at 2 (emphasis in original).

On October 7, 1986, the Licensing Board issued an order granting the Applicants' Motion, Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-34, 24 NRC (Oct. 7, 1986) (hereafter cited "LBP-86-34" and to the slip opinion).

On October 16, 1986, Mass AG submitted an oral request for a stay of LBP-86-34 to this Appeal Board. In an order of even date the Appeal Board granted a brief stay to afford Mass AG an opportunity to make a written application for a stay. Mass AG, in response to this order, filed a Notice of Appeal from LBP-86-34 and a brief in support thereof. This brief asserted a single ground for reversal of LBP-86-34, viz., the argument that the order allegedly violated 10 C.F.R. S 50.33(g). Mass AG Br. at 3-10. The brief also included an argument to the effect that a stay pending appeal was warranted. Id. at 10-13.

On October 17, 1986, this Appeal Board issued a Memorandum and Order summarily denying the stay application and directing, inter alia, that in the event the appeal was

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being pursued on the merits, briefs in opposition should be filed and served in hand by the close of business on October 24, 1986.

It is in this posture that this matter comes before the Appeal Board for review.

STATEMENT OF.THE ISSUE Does 10 C.F.R. S 50.33(g) preclude the issuance of a license authorizing the loading of fuel and conduct of precriticality testing of a reactor when no radiological emergency response plan for a governmental entity located in the emergency planning zones has been submitted?

ARGUMENT Introduction Stripped to its essentials, we understand Mass A.G.'s argument to be as follows: 10 C.F.R. 6 50.33(g) requires submission of an emergency plan for governmental entities located in nuclear power plan emergency planning zones (EPZs); while other parts of the regulations, (10 C.F.R. 5 50.47(d)), allow issuance of a license authorizing the activity here involved absent a determination that a plan is appropriate, there is no relief from the requirements of 10 C.F.R. 6 50.33(g) that some plan be submitted. Thus says

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u; 1 y wa AG, tr,;,. since there is no plan of any kind yet submitted Ee.I'o.M.t vhe-Massadhtisetts portion of the Seabrook EPZs, no

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as ithat granted in LBP-86-34 may be

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c nd un; g auch .

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..,.,3 N 'fi M5r hidtgrggen below,i this argument is simply an i

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-s-5EIEdiidI@.' 2 shin'anEies which, ~ like most such arguments, e.e.nc.u t',.,..-..

at:an to I c .na. , , , s. s fij-'EptQvd@;3pctiniic' hF.ih5di l'si.oth'erwise flawed as a matter of law.

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.- hey,L'. tOMPLTANCE :WITH < .:C. F. R. 6 50.33(g) 49 .. -e IS NOT A PREREQUISITE TO ISSUANCE

.~@licants, Motion, bdy:..AN DPERATING LICENSE BPf:hl ry ( Se abreol: SEtion, Uni.. .s . g,

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===c (heresits.erroneous  :. . premise

. : .a : ,. .,of the Mass AG argument

. ,...s _ c_dprives from an apparent misunderstanding as to what must be

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- --* --o, slpwn for issuance of any operating license. Mass. AG va, hass AG surr -

ca e

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.n-cee, , focuses ^.

upon 10 C.F.R. S 50.33(g) which purports to describe

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a portion of what should be included in an operating license er--- --c 4 u granted a nrief 3

...s ....,A..pplication

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argues that, absent inclusion of the 3

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._ material so described, no operating license of any kind may response to this order f : 1,, o -

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Tlis is not so.

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. The necessary findings which constitute prerequisites to 5..._...r- "- a si 410 grotnd for reverca; : :- ;.

- .. . . - tnn_ issuance.of an operating license are spelled out in y ., . the

-ne orcer allegedly vac N e > -. . -. ~n~ i v 10

i. C . E.a. .- csR . e.$,,50.57(a)(1)-(6)

.cr. at 3-10.

which read as follows:

-.., s- . . Construction of the facility

- r. a r g u r.c n t to the g h(1,)qpgeg}substantially completed, in conformity with the construction permit and the application as A 9 E o.

. amended, the provision of the Act, Ini e AppgM @grrillerer'.and . regulations of the

.- rc. er cur.ari;y denying Commission; and the e .ay o

'nter a:it, th r.: in the en nt y .

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being pursued on the merits, briefs in opposition should be filed and served in hand by the close of business on October 24, 1986.

It is in this posture that this matter comes before the Appeal Board for review.

STATEMENT OF THE ISSUE Does 10 C.F.R. 5 50.33(g) preclude the issuance of a license authorizing the loading of fuel and conduct of precriticality testing of a reactor when no radiological emergency response plan for a governmental entity located in the emergency planning zones has been submitted?

ARGUMENT Introduction Stripped to its essentials, we understand Mass A.G.'s argument to be as follows: 10 C.F.R. 5 50.33(g) requires submission of an. emergency plan for governmental entities located '..n nuclear power plan emergency planning zones (EPZs);-while other parts of the regulations, (10 C.F.R.

$ 50.47(d)), allow issuance of a license authorizing the activity here involved absent a determination that a plan is appropriate, there is no relief from the requirements of 10 C.F.R. 5 50.33(g) that some plan be submitted. Thus says

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

i Mass AG, since there is no plan of any kind yet submitted for the Massachusetts portion of the Seabrook EPZs, no authorization such as that granted in LBP-86-34 may be given.

As will be seen below, this argument is simply an exercise in semantics which, like most such arguments, proves too much and is otherwise flawed as a matter of law.

I. COMPLIANCE WITH C.F.R. $ 50.33(g)

IS NOT A PREREQUISITE TO ISSUANCE OF AN OPERATING LICENSE The first erroneous premise of the Mass AG argument derives from an apparent misunderstanding as to what must be shown for issuance of any operating license. Mass. AG focuses upon 10 C.F.R. 9 50.33(g) which purports to describe a portion of what should be included in an operating license application and then argues that, absent inclusion of the material so described, no operating license of any kind may issue. This is not so.

i The necessary findings which constitute prerequisites to the issuance of an operating license are spelled out in 10 C.F:R. $s 50.57(a)(1)-(6) which read as follows:

"(1) Construction of the facility has been substantially completed, in conformity with the construction permit and the application as amended, the provision of the Act, and the rules and regulations of the Commission; and J

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P (2) The facility will operate in conformity with the application as amended, the provisions of the Act, and the rules and regulations of the Commission; and (3) There is reasonable assurance (i) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public, and (ii) that such activities will be' conducted in compliance with the regulations in this chapter; and (4) The applicant is technically and financially qualified to engage in the activities authorized by the operating license in accordance with the regulations in this chapter.

However, no finding of financial qualification is necessary for an electric utility applicant for an operating license for a utilization facility of the type described in 6 50.21(b) or S 50.22 (5) The applicable provisions of Part 140 of this chapter have b'een satisfied; and (6) The issuance of the license will not be inimical to the common defense and security or to the health and safety of the public."

Singularly absent from this list is a requirement that the

" application be complete". Construction must be "substantially completed in conformity with . . . the application as amended"; 10 C.F.R. S 50.57(a)(1); Seabrook Unit No. 1 is. It must be found that "the facility will operate in conformity with the application as amended";

Seabrook will.

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In short, the only findings concerning the application, i.e. construction and operation in accord with it, can be made even if the application is wholly incomplete. This should surprise no one because the " teeth" of the regulation is that the facility must be built, and capable of operating, in accord with the Commission's regulations. The provision for a finding as to conformity with the application is to assure the enforceability of commitments to standards in excess of those required by the regulations.

Simple " completeness" of the application is not a licensing standard. Indeed, it could never be because the FSAR part of an application continues to change even after licensing. See 10 C.F.R. S 50.71(e).

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If Mass AG had wished to raise an alleged violation of 10 C.F.R. $ 50.33(g), he should have done it a long time ago in a different forum, i.e. before the Staff. The provisions of 10 C.F.R. S 50.33 are what guide the Staff in deciding whether an operating license application is sufficiently complete to permit its being docketed. See 10 C.F.R.

6 2.101(a)(2). A Staff decision to allow an operating license to be docketed is unreviewable by the NRC's adjudicatory boards. New England Power Co. (NEP Units 1 and 2), LBP-78-9, 7 NRC 271, 280 (1978). Indeed, the adjudicatory boards in an operating license proceeding have no reason even to investigate whether the operating license

application is complete.1 Thus, the major premise of Mass.

AG's argument, i.e. that a finding of compliance with 10 C.F.R. S 50.33(g) is a prerequisite to the issuance of an operating license is in error.

II. THAT COMPLIANCE WITH 10 C.F.R. S SO.33(g)

IS NOT A PREREQUISITE TO GRANTING AUTHORITY FOR THE ISSUANCE OF A LICENSE ALLOWING FUEL LOAD AND PRECRITICALITY TESTING IS CLEAR FROM THE LANGUAGE OF 10 OF C.F.R. 6 50.47(d)

In his brief, Mass AG argues strenuously for the proposition that the Shoreham decisions stand only for the proposition that a " low power" license may issue if there is some offsite plan submitted (i.e., a utility plan is sufficient). Mass AG then argues that a different result is called for in Seabrook because no plan has been submitted for the Massachusetts portion of the EPZs.

To begin with, this argument by Mass AG ignores the actual language of 10 C.F.R. 6 50.33(g). That section reads, in material part, as follows:

"(g) If the application is for an operating license for a nuclear power reactor, the applicant shall submit radiological emergency response plans of State and local government entities in the United 2

Per contra, a Licensing Board in a construction permit proceeding must be satisfied that the construction permit application does have a certain degree of completeness before it allows a construction permit to issue. See 10 C.F.R. 6 50.35(a).

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States that are wholly or partially within the plume exposure pathway Emergency Planning Zone (EPZ), as

, well as the plans of State governments wholly or partially within the ingestion pathway EPZ."

(Footnotes omitted.)

There is nothing in the above-quoted language which allows for submission of anything but " State and local government entity" plans. Nothing is said about other plans. In the very case upon which Mass AG relies, the Licensing Board noted that 10 C.F.R. 6 50.33(g) " read in isolation requires the filing of an offsite emergency plan sponsored by the appropriate local government". Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 620, affirmed, CLI-83-13, 17 NRC 741 (1983). However, that Board went on to review the history of 10 C.F.R. S 50.47(c)(1) and concluded that section should be read as rejecting the concept that 10 C.F.R. $ 50.33(g) was an absolute bar to issuance of an operating license absent a governmentally sponsored offsite plan. .

Just as 10 C.F.R. 6 50.47(c)(1) obviates the need for governmentally sponsored plans, 10 C.F.R. i 50.47(d) obviates the need for any offsite emergency plans to be in existence at all prior to issuance of an operating license for operation up to 5% of rated power. Mass AG seeks to avoid the logic of this position by, after quoting 10 C.F.R.

_ . _ . - . . - . . = . . _ . . _ , , , , . , . - , , ,

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6 50.47(d), Mass. AG Br. at 7-8, characterizing it as a regulation that:

" obviates only the requirement set forth in 65 50.47(a) and (b) that

' review, findings or determinations' be made concerning the adequacy of offsite emergency plans. It does not obviate the requirement that such plans be submitted as part of the Section 50.33 application process". Mass AG Br. at 8 (emphases in original).

This characterization ignores the actual language of the regulation. What is obviated is not only the need for NRC or FEMA " review, findings or determinations concerning

. . . the adequacy of . . . offsite emergency response plans", but also of " review, findings or determinations concerning the state of offsite emergency preparedness" (emphasis added) (a phrase set off in the disjunctive from "the adequacy of . . . emergency response plans"). If there is no need for NRC review of "the state of offsite emergency preparedness" before a low power license is issued, it follows as night follows day that there is no need for something called " Massachusetts Plan" to have been

" submitted". It is for this reason that the Commission has properly characterized the right to receive a low power license under 10 C.F.R. $ 50.47(d) to be " unqualified", Long Island Lighting Company (Shoreham Nuclear Power Station),

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CLI-85-1, 21 NRC 275, 278 (1985), in circumstances such as exist here.

III. TAKEN TO ITS LOGICAL CONCLUSION, MASS AG's ARGUMENT GIVES ABSURD RESULTS BASED ON FORM NOT SUBSTANCE 4

Taken to its logical conclusion, Mass AG's argument in the case at bar means that if the Seabrook applicants should file a one sheet document entitled " Massachusetts Emergency Plan" that said "in case of emergency the applicants will send a rider to the State House in Boston", Mass AG would no longer oppose the decision at bar because a " plan" had been

" submitted". This is the necessary result of the semantic argument made by Mass AG. To state it is to refute it. The language of the operative regulation 10 C.F.R. S 50.47(d),

is clear; the provisions of the argued regulation, 10 C.F.R. 6 50.33(g), are inapplicable.

CONCLUSION The decision of the Licensing Board should be affirmed.

Respectfully submitted, y G j 'r-b

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////H'/

Tho' mas C.~Dsquin, Jr.

R. K. Gad, III Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Counsel for the Applicants

CERTIFICATE OF SERVICE DOLMETED USnW I, Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on October pg,7 R2:25 I made service of the within document by mailing co e thereof Federal Express to those marked with an asterisk, otherwise first class mail, postage prepaid, to: OFFICE OF 3b -- '

00CK! Titui & SE r M

• Alan S. Rosenthal, Chairman *Howard A. Wilber U U ""

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

• Gary J. Edles 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 Helen Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 Washington, DC 20555 Dr. Emmeth A. Luebke Diane Curran, Esquire Atomic Safety and Licensing Harmen & Weiss Board Panel 2001 S Street, N.W.

U.S. Nuclear Regulatory Suite 430 Commission Washington, DC 20009 Washington, DC 20555 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 Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397

Atomic Safety and Licensing *Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814 Atomic Safety and Licensing

• Robert A. Backus, Esquire Appeal Board Fanel 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. Madeau 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 General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Peter S. Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boyntos.'.. 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

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, 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 Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110 Thomas G. T W Jr.

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