ML20203E432
| ML20203E432 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/22/1986 |
| From: | Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-063, CON-#386-63 OL, NUDOCS 8607240148 | |
| Download: ML20203E432 (9) | |
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7/22/86
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DOCKETED USNRC s
I-UNITED STATES OF AMERICM R 23 A11 :13 NUCLEAR REGULATORY COMMISSION GFFICE C= 6Ec;n *a t BEFORE THE ATOP 11C SAFETY AND LICdkh1((UED'ONRIP l.
In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL NEW HAtIPSIIIRE, et al.
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50-444 OL
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Onsite Emergency Plan-i (Senbrook Station, Units 1 and 2) -
)
ning and Safety Issues NRC STAFF RESPONSE TO PETITION OF TIIE ATTORNEY GENERAL OF MASSACIIUSETTS FOR A I?AIVER OF 10 CFR 550.47(d)
On July 2,
1986, the Attorney General of the Commonwealth of Massachusetts
(" Massachusetts") filed a petition before the Licensing Board requesting, pursuant to 10 CFR 52.758, that the application of 10 CFR 950.47(d) in the Seabrook proceeding be waived.
For the reasons
, presented below, the Staff submits that the Petition must be denied.
j I.
STANDARDS FOR A WAIVER 1
Section 2.758 of the Commission's regulations provides that the Commission's regulations shall not be subject to attack in Commission adjudicatory proceedings unless a party petitions for a waiver of a regulation in a particular proceeding.
The sole ground for a waiver shall be that "special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or ragulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted."
A waiver petition must be 8607240148$h$43 l
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accompanied by an affidavit setting forth the specific subject matter of the proceeding as to which application of the rule or regulation would not serve the purposes for which it was adopted and setting forth "with particularity the special circumstances alleged to justify the waiver or exception requested."
Id.
If the petitioner for a waiver makes a prima facie showing that application of the regulation would not serve the purposes for which it was adopted, the presiding officer shall certify directly to the Commission the matter of whether the regulation should be waived for the particular proceeding. 10 CFR 62.758(d).
II. I.IASSACHUSETTS' PETITION P.iassachusetts is seeking a waiver of 10 CFR 50.47(d). That Section provides that no determinations concerning the adequacy of offsite emergency planning for a site are necessary prior to issuance of an operating license authorizing only fuel loading and low-power operation up to 59 of rated power.
In its Petition, f.fassachusetts challenges Section 50.47(d) as a violation of the Atomic Energy Act (Petition at 1-3), and in the siternative asks that the Section be waived in this proceeding for the following reasons:
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1)
Given the current absence of any offsite emergency plans covering f.fassachusetts, there is "a strong likelihood" that Seabrook will not receive a full-power operating license in the near future, if ever.
I (Petition at 3-4, it 1-6);
l 2)
Given the possibility that a full-power license may not issue in the near future, the benefits of low-power operation are outweighed by the consequences of such operation.
(Petition at 4-5, 15 7-11);
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- 3) ' Extended operation at 5% power would undercut the Commission's rationale in promulgating Section 50.47(d).
(Petition at 6, if 12-14);
4)
Section 50.47(d) should be waived until the Commission has conducted a full investigation of the accident at Chernobyl.
(Petition at 7, S 16).
Massachusetts submitted with its Petition affidavits from Albert Carnesale, Dale Bridenbaugh and Gregory Minor, Charles Barry, and Gordon Thompson.
These affidavits contain assertions that low-power operation would increase the level of radioactivity in the reactor, thereby increasing the cost of potential conversion, disassembly or entombment of the reactor (Carnesale); that, at the Shoreham facility in New York, a cost-benefit analysis of low-power testing did not support authorization of such testing (Bridenbaugh and Minor);
that the Commonwealth of Massachusetto is still studying the issue of emergency planning for Seabrook and has not yet reached a final position on the issue (Barry);
and that extended operation at 5% power could lead to the buildup of potentially significant fission products (Thompson).
Even if one accepts for the purpose of argument the assertions contained in the affidavits, the Petition does not make out a case for a waiver.
The issues raised in the Petition are either not unique to Seabroch, or they have already been rejected by the Commission.
l As noted, the first issue raised in the Petition is the asserted illegality of Section 50.47(d).
Whatever the merits of this issue, it is clear that the validity of a Commission regulation can not be attacked in a licensing proceeding.
See 10 CFR $2.758(a).
If Massachusetts wishes to j
request that the Commission " amend or rescind" this regulation, it should l
l
file a rctluest for rulemaking pursuant to 10 CFR 52.802.
For the present purposes of this proceeding, the requirements of Section 50.47(d) must be applied unless the requirements for a waiver pursuant to 52.758 are met.
Massachusetts has raised essentially four arguments in its justification for a waiver.
The first three (detailed above) boil down to the assertion that Seabrook may never get a full-power license, if it does get a license that license will not issue for some time, and that in either case a cost-benefit analysis would dictate against the issuance of a low-power license.
These same issues were raised by the State of New York and Suffolk County in the Shoreham proceeding; in that proceeding, it was orgued that a low-power license should not be issued because of uncertainties concerning whether the state of emergency preparedness would ever permit the issuance of a full-power license, and that the uncertainties tilted the cost-benefit analysis against issuance of a I
low-power license. -
The Commission had the opportunity to address these issues twice in the Shoreham proceeding; each time, the Commission ruled that the issuance of a low-power license is not contingent on the likelihood of eventual issuance of a full-power license.
The first time the Commission addressed this issue, the Licensing Board had certified to the Commission the question of whether a low-power license should issue if the Licensing Board had some doubt about the eventual issuance of a full-power license (because of problems 1/
Indeed,
the similarity between Massachusetts' Petition and the objections to a low-power license raised in the Shoreham proceeding is underscored by Massachusetts' reliance on the affidavit of Bridenbaugh and f.finor, an affidavit that was prepared for (and submitted in) the Shoreham low-power proceeding.
with offsite emergency planning).
The Commission declined to speculate on whether the requirements for a full-power license would ever be met; the Commission held that offsite emergency planning is not necessary for low-power operation and that, if an applicant meets all the regulatory requirements for a low-power license, "it is entitled to that license despite the existing uncertainties about offsite emergency planning."
Long Island Lighting Company (Shoreham Station, Unit 1), CL1-83-17, 17 NRC 1032, 1034-35 (1983).
The intervenors in Shoreham then argued that a new cost-benefit analysis was required to weigh the potential effects of low-power operation never followed by full-power operation.
The Commission once again refused to speculate whether a full-power license would eventually issue, holding that any such speculation did not require a new cost-benefit analysis for issuance of a low-power license.
Long Island Lighting Company (Shoreham Station, Unit 1), CLI-84-9, 19 NRC 1323 (1984). b Given these Commission rulings, it is clear that the Seabrook Applicants will be entitled to a low-power license once they can demonstrate that they have met all the requirements for such a license, and that compliance with offsite emergency planning requirements is not required for a low-power license.
To the extent that the instant waiver Petition tsserts that emergency planning uncertainties should be grounds 2/
New York State and Suffolk County thereupon sought a stay of the issuance of a low-power license for Shoreham.
The Court of Appeals for the District of Columbia Circuit found that the State and County had not demonstrated either that issuance of a low-power license would result in irreparable harm or that the Commission had violated the requirements of NEPA by refusing to perform a new cost-benefit analysis and therefore denied the request for a stay.
Cuomo v.
NRC, 772 F.2d 972 (1985).
t 1
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l
o for a wiiver of Section 50.47(d), the Petition is at odds with the Commission's Shoreham rulings and should be denied.
The only other ground advanced for the waiver is the assertion that the Commission should investigate the accident at Chernobyl before a low-power license issues.
This argument runs afoul of the requirement in
$2.758 that a waiver petition must demonstrate the special circumstances with respect to the subject matter of a particular proceeding causing the failure of the regulation to serve the purposes for which it was adopted.
The effects of Chernobyl on the Commission's rationale for adopting Fection 50.47(d) are generic in nature; these effects would be felt no more strongly at Seabrook than at any other site.
Such generic srguments are not the proper subject of a waiver petition, but rather should be the focus of a rulemaking petition.
The only " unique" feature of the Seabrook proceeding identified in f fassachusetts' Petition is the absence of emergency plens for that portion of the EPZ located in the Commonwealth.
As the Commission made clear in Shoreham, however, offsite emergency planning issues are not to be considered in determining whether a low-power license should be issued.
The Petition for a waiver must therefore be denied.
Respectfully submitted, Robert G. Perlis Counsel for NRC Staff l
Dated at Bethesda, Blaryland this 22nd of July,1986 i
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1
O UNITED STATES OF AP,1 ERICA -
NUCLEAR REGULATORY COMMISSION DEFORE T!!E ATOfilC SAFETY AND LICENSING BOARD In the hit.tter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL-1 NEW HAMPS!! IRE, et al.
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50-444 OL-1
)
On-site Emergency Planning (Seabrook Station, Units 1 and 2)
)
and Safety Issues CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITION OF THE ATTORNEY GENERAL OF MASSACHUSETTS FOR A WAIVER OF 10 CFR 550.47(d)" in the above proceeding have been served on the following by deposit in the United State mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of July,1986.
Sheldon J. Wolfe, Chairman
- Dr. Emmoth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing 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
- Carol Sneider Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, D.C.
20555 Boston, MA 02108 Deverly Hollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General l
Hampton, NH 03842 George Dana Bisbee i
Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney Generrd Dourd of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, Nil 03301-6307 Rensington, Nil 03827 Richard A. Hampe, Esq.
New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301 4
Calvin A.h anney, City Manager Allen Lampert C
City Hall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Ilampton Falls, !!H 03844 Newbury, MA 09150 Mr. Robert J. Harrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Hampshire Salisbury, MA 01950 P.O. Box 320 Manchester, NH 03105 Diane Curran, Esq.
Harmon & Weiss Robert A. Backus, Esq.
2001 S Street, N.W.
Dachus, fieyer & Solomon Suite 430 116 Lowell Street Washington, D.C.
20000 Manchester, NH 03106 Edward A. Thomas Philip Ahrens, Esq.
Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCII)
Office of the Attorney General Boston, MA 02100 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq.
Thomas G. Dignan, Jr., Esq.
Assistant General Counsel Ropes a Gray rederal Emergency Management Agency 225 Franklin Street 500 C Street, S.W.
Boston, MA 02110 Washington, D.C.
20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board
- 5 Market Street U.S. Nuclear Regulatory Commission i
Portsmouth, NU 03801 Washington, D.C.
20555 l
Atomic Safety and Licensing Paul McEachern, Esq.
Appeal Panel
- Matthew T. Brock, Esq.
U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C.
20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801 l
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Docketing-and Service Section*
William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C.
20555 10 Front Street Exeter, NH 03833 f.faynard L. Young, Chairman Board of Selectmen Peter J. Blatthews, Pfayor 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectment South IIampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 R. K. Gad III, Esq.
Gary W. Holmes, Esq.
Ropes a Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 00110 Ilampton, NII 03842 Judith H. Mizner, Esq.
Silverglate, Gertner, Baker Finc and Good 88 Broad Street Boston, MA 02110 Robert G. Perlis Counsel for NRC Staff
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