ML20197E027
| ML20197E027 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/24/1988 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#288-6399 ALAB-892, LBP-88-06, LBP-88-6, OL-1, NUDOCS 8806080058 | |
| Download: ML20197E027 (16) | |
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DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: {'{ , ,
Alan S. Rosenthal, Chairman thy 24,' 198 8 Howard A. Wilber (ALAB-892)
) SERVED MAY 241988 In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, _e t _a l . ) 50-444-OL-1 (Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Isstles)
)
Diane Curran and Andrea Perster, Washington, D.C., for the intervenor New England Coalition on Nuclear Pollution. 1 Thomas G. Dignan, Jr. and D_eborah S. Steenland, Boston, Massachusetts, for the applicants, Public Service Company of New Hampshire, et al,
, Gregory Alan Berry for the Nuclear Regulatory Comrnission staf f.
DECISION l
We have before us the appeal of the intervenor New England Coalition on Nuclear Pollution (Coalition) from a February 17, 1988 memorandum and order issued by the Licensing Board in the onsite emergency planning and safety issues phase of this operating license proceeding.I In that memorandum and order, the Board concluded, contrary to the position of the Coalition, that the then pendency of two 1
See LBP-88-6, 27 NRC 245.
Sn'PD8sBi88Hp 33o2-Q
e 2
2 safety issues remanded by us in ALAB-875 did not stand in the way of the authorization of Seabrook operation at low power (i.e., at_ levels up to five percent of rated power).3 These issues had their genesis in contentions that had been submitted by the Coalition several years ago and, as we concluded in ALAB-875, were erroneously rejected by the Licensing Board at the threshold. One of the contentions concerned the adequacy of the applicants' proposal for the inservice inspection of the Seabrook facility's steam generator tubes. The other focused upon the accumulation of aquatic organisms and other foreign matter in the facility's cooling systems.
2 26 NRC 251 (1987).
3 At present, low-power Seabrook operation is in all events precluded by reason of another discrete issue still before~the Licensing Board. That issue involves the provision made for supplying notification of a radiological emergency at the Seabrook facility to members of the public located within the facility's plume exposure pathway emergency planning zone. See ALAB-883, 27 NRC 43 (1988),
applicants' February 18, 1988 petition for Commission review pending. In nonetheless consideting whether resolution of the steam generator tube integrity and cooling system issues were likewise a condition precedent to such operation, the Board followed the suggestion in our February 10, 1988 Memorandum (unpublished) at 7-8.
In addition, the Licensing Board has before it a remanded issue concerned with the environmental qualification of certain coaxial cable used for data transmission in the facility's computer system. See ALAB-891, 27 NRC (April 25, 1988). It may or may not prove necessary for the Board to determine whether the (Footnote Continued)
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2 safety issues remanded by us in ALAB-875 2 did not stand in the way of the authorization of Seabrook operation at low power (i.e., at levels up to five percent of rated power).3 These issues had their genesis in contentions that had been submitted by the Coalition several years ago and, as we concluded in ALAB-875, were erroneously rejected by the Licensing Board at the threshold. One of the contentions concerned the adequacy of the applicants' proposal for the inservice inspection of the Seabrook facility's steam generator tubes. The other focused upon the accumulation of aquatic organisms and other foreign matter in the facility's cooling systems.
2 26 NRC 251 (1987).
3 At present, low-power Seabrook operation is in all events precluded by reason of another discrete issue still before the Licensing Board. That issue involves the provision made for supplying notification of a radiological emergency at the Seabrook facility to members of the public located within the facility's plume exposure pathway emergency planning zone. See ALAB-883, 27 NRC 43 (1988),
applicants' February 18, 1988 petition for Commission review pending. In nonetheless considering whether resolution of the steam generator tuba integrity and cooling system issues were likewise a condition precedent to such operation, the Board followed the suggestion in our February 10, 1988 Memorandum (unpublished) at 7-8.
In addition, the Licensing Board has before it a remanded issue concerned with the environmental qualification of certain coaxial cable used for data
- transmission in the facility's computer system. See l
ALAB-891, 27 NRC (April 25, 1988). It may or may not j prove necessary for the Board to determine whether the (Footnote Continued)
p Le 3
Underlying the conclusion reached in the February 17 memorandum and order was the Licensing Board's factual determination that neither the asserted inadequacy of the proposed steam generator tube inservice inspection procedure nor the possibility of the hypothesized blockage in cooling systems had a bearing upon safe facility operation at low power. In its appellate brief, the Coalition does not contest that determination.4 Rather, the appeal rests entirely upon a legal proposition. According to the coalition, the issuance of a low-power license prior to the resolution of all contested issues pertaining to the safety of plant operation would deprive it of hearing rights guaranteed by section 189a. of the Atomic Energy Act of 1954, as amended.5 This is said to be so irrespective of whether the issues relate to low-power, or solely to r
i full-power, operation.
l A. Before coming to grips with the merits of the l
appeal, we must consider the applicants' insistence, endorsed by the NRC staff, that the appeal has become moot t
(Pootnote Continued) pendency of that issue stands in the way of low-power operation. See id, at n.66.
l See New England Coalition on Nuclear Pollution's Brief in Support of Appeal of Memorandum and Order Renewing l
i Authorization to Operate at Low Power (April 7, 1988)
[ hereinafter, Coalition's Brief].
l 5
42 U.S.C. 2239(a).
a
= .
4 by reason of developments occurrine subsequent to the April 7 filing of the Coalition's brief.
On April 22, the Coalition advised the Licensing Board in writing that it had decided not to litigate further either the steam generator tube integrity contention or, to the extent that it related to the applicants' monitoring program for the detection of coolant flow blockage resulting from the buildup of macrobiological organisms, the cooling systems contention.6 As further explained in a subsequent filing with the Board below, the decision not to oppose any summary disposition motions on the latter contention stemmed from the Board's March 18, 1988 Memorandum and Order (unpublished). In that issuance, the Board adhered to an earlier ruling that the cooling systems contention could not 6
See Letter from Andrea Ferster to the members of the Licensing Board (April 22, 1988) (hereinafter, Coalition's April 22 Letter). Inasmuch as that letter had an obvious possible relevance to the proper disposition of a matter pending before us, the Coalition should have specifically directed our attention to its content. Merely including this Board on the service list was not enough. Manifestly, we cannot be expected to examine routinely the copies served upon us of the large number of documents that are filed with the licensing boards in the various proceedings pending before those boards. If such a document warrants our review in connection with an outstanding appellate matter, it should be supplied to us with an appropriate covering memorandum or letter.
See New England Coalition on Nuclear Pollution's Response to Applicants' Motion for Summary Disposition on NECNP Contention IV (May 6, 1988) [ hereinafter, Coalition's May 6 Response].
e 5
be read as encompassing microbiologically-induced corrosion.8 The Coalition does not accept that ruling and intende to appeal it "at the appropriate time." Moreover, it continues to believe that the applicants' "program for detecting and controlling microbiologically induced corrosion is not adequate."10 For those readons, it asked the Licensing Board to make clear in granting summary disposition to the applicants that that action was "limited to the issue of blockage of cooling systems by macro-organisms."Il In a May 12 Memorandum and Order (unpublished), the Licensing Board took note of the Coalition's April 22 Letter and subsequent filing. It concluded that the letter constituted an abandonment of both contentions and that, therefore, there was no need to issue a decision on the 8
We understand the phrase "microbiologically-induced corrosion" to have reference to corrosion in cooling systems brought about by the attack of extremely small marine organisms that pass through protective screens. In contrast to larger "macro-organisms," by reason of their size these organisms do not directly pose a blockage threat (although any corrosion they might induce could possibly ultimately have that effect).
9 Coalition's April 22 Letter at 2; Coalition's May 6 Response at 3-4.
O See also Coalition's May 6 Response at 3.
Coalition's Apri- 22 Letter at 1-2, 1
Coalition's May 6 Response at 4.
6 applicants' pending motions for summary disposition of them.
The contentions were dismissed and, on the ground that summary disposition had not been granted, the Coalition's request in its May 6 Response was denied as moot.
Given these developments, we called upon the Coalition to respond to the suggestion that the appeal at hand is moot. In its response, the Coalition points out anew that it intends to challenge the Licensing Board's determination that its cooling systems contention did not encompass the issue of microbiologically-induced corrosion. This being so, we are told, the contention remains unresolved and, accordingly, the question raised by the appeal has not become purely academic.12 For present purposes, we accept this analysis. In addition, it occurs to us that a decision or. the merits of the appeal might also prove useful in connection with The Coalition repeats the statement in its papers below that its appeal will be filed "at the appropriate time." New England Coalition on Nuclear Pollution's Response to the Suggestion of Mootness Contained in Applicants' Brief in Response to NECNP's Appeal of Renewal of Low Power Authorization (May 19, 1988) at 16. We have not been asked for guidance, and do not here provide it, with respect to whether an appeal must have been taken from the Board's March 18 Memorandum and Order, or must be taken from the May 12 Memorandum and Order, or can await subsequent events. On this score, the time for the filing of a notice of appeal from the May 12 order has not as yet expired (see 10 CFR 2.762) and, thus, an appeal from that order is still possible as of this writing.
7 another issue pending below. As previously noted, we recently remanded to the Licensing Board the issue of the environmental qualification of certain coaxial cable, and the Board may find it necessary to decide whether that issue must be resolved in advance of low-power operation.13 Should that contingency arise, the Board undoubtedly would be advantaged by a definitive appellate ruling on the coalition's claim that, irrespective of whether the cable fulfilled a safety function during low-power operation, such operation would be legally barred unless and until the cable was found to meet all applicable environmental qualification requirements.14 B.l. We now move forward to consider the merits of the Coalition's appeal. Of necessity, the Coalition maintains that there is no conflict between its interpretation of the scope of the hearing rights provided it in section 189a. of the Atomic Energy Act and the terms of 10 CFR 50.57 (c) --
the principal (and the only one here relevant) provision in the Commission's regulations concerned with the authorization of low-power facility operation. For we have 13 See supra n.3.
14 Although we do not normally render advisory opinions, there is no legal bar to our doing so in appropriate circumstances. See Tennessee Valley Authority (Hartsville Nuclear Plants, Units lA, 2A, 1B, and 28),
ALAB-467, 7 NRC 459, 463 (1978).
8 long recognized that, in light of 10 CFR 2.758 (a) , we lack the power to entertain a claim that a Commission regulation should be disregarded as inconsistent with a statutory command.15 And, as the Coalition itself acknowledges, just a year ago in this proceeding we had occasion to reiterate, in the context of section 50.57 (c), that an intervenor's insistence that "the Commission's regulations themselves violate the hearing requirements of the Atomic Energy Act" must be raised "with the Commission; the regulations are not subject to challenge before us."16 Our initial task, then, is to address the Coalition's insistence that section 50.57 (c) is not to be taken as affirmatively authorizing the issuance of a low-power license prior to the resolution of all contested issues relevant to full-power operation. If we conclude that the section does contain such an authorization, it will be for the Commission to pass judgment upon the Coalition's belief that the consequence is the denial of statutory hearing rights.
15 See, e.g. , Carolina Power and Lic ht Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 21 NRC 525, 544 (1986); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-784, 20 NRC 845, 846 (1984); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 89 (1974).
16 ALAB-865, 25 NRC 430, 439 (1987).
I
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- 2. Subsection (a) of 10 CFR 50.57 sets forth the findings that must be made as a precondition to the issuance of a full-power license.1 In subsection (c), the regulation' focuses upon the requirements for "an operating license-authorizing low-power tcsting (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 by the Licensing Board on an applicant's motion seeking such a license shall be taken with due regard to the rights of the parties to the proceedings, including the right 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 17 In the instance of a facility such as Seabrook, those findings includes (1) Construction of the facility has been substantially completed, in conformity with the construction permit and the application as amended, the provisions of the Act, and the. rules and regulations of the Commission; and (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 . . . qualified to engage in the activities authorized by the operating license in accordance with the regulations in this chapter. . . .
c 10 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 autaorized. The Director of Nuclear Reactor Regulation will make findings cn all other matters specified in paragraph (a) of this section. (Emphasis supplied.]
As the emphasized portions of the section make clear, it is not every contention that need be heard or decided prior to the authorization of a low-power license. Rather, in so nany words, the section requires a hearing only on those contentions "relevant to the activity to be authorized" -- here, operation at levels up to five percent of rated power. With equal specificity, the scetion mandates findings only on matters in controversy 'with respect to the contested activity sought to be authorized"
-- which, once again, in this instance is operation at levels not to exceed five percent of rated power.18 18 For its part, the Coalition seemingly attaches no particular significance to the phrases "relevant to the activity to be authorized" and "with respect toRather, the it contested activity sought to te authorized."
would have us take the last t": sentences in the portion of section 50.57 (c) quoted in the text above as indicating that the purpose of the section "was simply to relieve the Licensing Board of the obligation to make positive findings on uncontested issues prior to low power operation, by i
I delegating this function to the Director of Nuclear Reactor Regulation (NRR)." Coalition's Brief at 16 (emphasis in j
i original).
There are at least two crucial flaws in that thesis.
First, it does not explain what the Commission might have (Footnote Continued) i i
o 11 In short, we find the terms of section 50.57 (c) to provide adequate support by themselves for the Licensing Board's conclusion that the decisive question was whether the remanded contentions presented issues germane to low-power, an distinguished from full-power, operation.19 (Footnote Continued) had in mind when it limited the required hearing and initial decision to the activity "to be authorized." Surely, that explicit limitation cannot be dismissed as mere window dressing and thereby ignored. Second, the Coalition overicoks the fact that there was no occasion in enacting l section 50.57 (c) for freeing licensing boards of the obligation to make findings on uncontested issues. For, at the same time section 50.57(c) assumed its present form in 1972 as part of a general restructuring of facility license application review and hearing processes, the Commission added section 2.760a. See 37 Fed. Reg. 15,127, 15,137, 15,142-43 (1972). As promulgated, section 2.760a generically prohibited licensing boards in operating license proceedings from making findings of fact and conclusions of law on any uncontested matter. (In 1979, that section was amended to allow (albeit not to require) the boards in certain specified circumstances to raise and decide sua sponte matters that had not been put in controversy by the parties. See 44 Fed. Reg. 67,088 (1979).) Given section 2.760a, section 50.57 (c) must be taken as simply a reinforcement of the Director's obligation to pass upon all uncontested matters pertinent to the sought icw-power authorization.
I9 As just noted, section 50.57 (c) assumed its present form in 1972 as part of a general restructuring of facility license application review and hearing processes. Although the accompanying statement of consideration has nothing illuminating to say about the section specifically, it does reflect that a major purpose underlying the entire restructuring effort was the expedition of the decisional process. See 37 Fed. Reg. 15,127. Certainly, the accomplishment of that objective is furthered, not retarded, if the section is read as authorizing low-power operation on the strength of a determination that the requicite assurance exists that such low-power operation will not endanger the public health and safety.
4 12 It need be added only that, although the Commission may not have been previously called upon to confront squarely the precise question that is raised by this appeal, a 1984 decision in the Shoreham proceeding makes plain its view that neither section 50.57 (c) nor common sense mandates that the authorization of low-power operation be preceded by the resolution of safety issues having nothing whatever to do with such operation. O Before the Commission at the time was the request of the Shoreham applicant, pursuant to section 50.57(c), for a license authorizing it to engage in fuel loading and low-power testing. The request came to the Commission against the background of the grant by a licensing board of the applicant's motion for summary disposition on the safety issues related to so-called "Phases I and II" (which covered fuel loading and precriticality and cold critical testing). In connection with that grant, the Board noted that the facility lacked a fully qualified onsite source of emergency alternating current (AC) power, as required by General Design Criterion (GDC) 17 contained in Appendix A to 10 CFR Part 50. Relying upon its interpretation of an 20 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC 1437, 21 See LDP-84-35A, 20 NRC 920 (1984).
6 13 earlier Commission order, however, the Board determined that, because neither onsite nor offsite AC power would be required for the protection of the public health and safety during Phases I and II, a license authorizing those phases could issue in advance of compliance with GDC 17.22 The Commission's role was to determine whether to allow the Licensing Board's order to become immediately effective, with the consequence that the NRC staff could issue a license for Phases I and II after resolving "any remaining relevant uncontested issues."23 Carrying out that function, the Commission found one impediment to the order receiving such treatment. But that impediment was not the GDC 17 matter. Rather, the potential stumbling block to the inception of those phases of cperation was one of our decisions -- handed down subsequent to the entry of the Licensing Board order -- that had remanded certain "minor" issues to the different Licensing Board that had l
l responsibility for the basic operating license proceeding.
l
' As the Commission saw it, Phases I and II could not commence until that Board either resolved the remanded issues in Id. at 926, 23 20 NRC at 1438 (emphasis supplied) .
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14 favor of the applicant or determined them to be "not material to (those phases) of low-power operation."24 Insofar as the GDC 17 matter was concerned, the Commission explicitly agreed with the analysis that led the Licensing Board to decide that Phases I and II of low-p7wer operation could be authorized notwithstanding the continuing lack of compliance with that criterion.25 It acknowledged that, in a prior order, it had held that section 50.57 (c) should not be read to make the criterion inapplicable to low-power operation. But the Commission went on to explain that
[bly this we meant only that S 50.57 (c) does not, by itself, carve out an exception from all health and safety regulations that would otherwise be applicable to a low-power license. We did not mean to say, however, that every health and safety regulation, regardless of its purpose or terms, must be deemed fully applicable to fuel loading and to every phase of low-power operation, or that the pressures, temperatures, and other stresses associated with full power must be postulated in l
i evaluating applicability of, or compliance with, regulations for low power. Each regulation must be examined to determine its application and effect for fuel loading and for each phase of l
low-power operation. Simple logic and common sense indicate that some regulations should, by their own terms, have no application to fuel l loading or some phases of low-power operation.27 I
l
,I,d. at 1439 (emphasis supplied).
25
(
Ibid.
26 Ibid. (citing CLI-84-8, 19 NRC 1154, 1155 (1984)).
27 Id. at 1439-40 (emphasis supplied).
l
. - - . - ,- , , . , , , - - , , , . . - - , - . - - - - - - - c .
(L 15 The Coalition makes no endeavor to distinguish the Shoreham result or the reasoning underlying it. Rather, we ,
are told merely that the Commission indulged in a "novel" reading of section 50.57 (c), totally devoid "of regulatory or case authority." We leave it to the Commission to' '
evaluate that criticism. Just as we are not empowered to hold Commission regulations invalid, so too we must accept the interpretation and effect accorded to those regulations by the body that promulgated them.29 B
k In sum, in terms and as interpreted by the Commission, 10 CFR 50.57 (c) allows the authorization of low-power operation so long as no safety issues pertaining to such
^
28 Coalition's Brief at 21.
29 It will thus be for the Commission to pass ultimate judgment upon the Coalition's further claim that the Shoreham interpretation of section 50.57 (c) cannot be squared with the promulgation two years earlier of 10 CFR
- 50. 47 (d) . We note in passing, however, our belief that the claim lacks merit.
Section 50.47 (d) provides that a license authori=ing operations up to five percent of rated power can issue in advance of the review by the NRC and the Federal Emergency Management Agency of offsite emergency preparedness planning. The Coalition reasons that, if section 50.57 (c) had been intended to have the effect attributed to it by the Commission in Shoreham, section 50.47 (d) would have been thought unnecessary. We disagree. Section 50.57 (c) does not address the question of the extent to which offsite emergency preparedness is relevant to low-power operation and, thus, must be considered before such operation is commenced. That question is, instead, confronted and answered in section SC.47 (d) .
f
16 operation remain unresolved. Given the unchallenged finding therein that neither of the issues here in question bears upon low-power operation, it necessarily follows that the Licensing Board's February 17, 1988, memorandum and order, LBP-88-6, 27 NRC 245, must be affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD Q,b hh h C. Je(h Shbemaker Secretary to the Appeal Board