ML20203K056
| ML20203K056 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/29/1986 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-186 OL, NUDOCS 8608060121 | |
| Download: ML20203K056 (7) | |
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NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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On-site Emergency Planning (Seabrook Station, Units 1 and 2) )
and Safety Issues
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APPLICANTS' RESPONSE TO SEACOAST ANTI-POLLUTION LEAGUE'S MOTION FOR BOARD DECISION ON APPLICANTS' EVACUATION TIME ESTIMATE (ETE) AS A CONDITION TO ISSUANCE OF OPERATING LICENSE Under date of July 16, 1986, Seacoast Anti-Pollution League (SAPL) has filed with this Board a pleading entitled
" Seacoast Anti-Pollution League's Motion for Board Decision on Applicants' Evacuation Time Estimate (ETE) as a Condition to Issuance of Operating License" (SAPL Motion).
The SAPL Motion is not, in reality, a motion but a brief in which an argument is made that this Board should decide the pending ETE contention (NECNP III.12-III.13) as part of any initial 8608060121 860729 PDR ADOCK 0500 3
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decision authorizing issuance of a low power license to Seabroook Station.
To begin with, so much of SAPL's argument as is based upon the concept that the " law of the case" dictates that this Board decide the ETE issue before authorizing low power operation (SAPL Motion 2-4) it is misplaced.
That argument is grounded upon the concept that in a hearing notice issued July 8, 1983, the then-only-existing Seabrook Licensing Board bifurcated the licensing issues into the categories of
" technical safety issues and on-site emergency planning issues," as opposed to "off-site emergency planning issues,"
and the ETE issue was litigated in the "on-site" phase.
Prescinding from whether a notice of hearing and decision to litigate an issue in one or another phase of a hearing can ever be viewed as setting "the law of the case," the argument ignores subsequent events.
On March 25, 1986, almost three years after the 1983 notice and hearings, the "off-site" Licensing Board made clear that the ETE issue remained with it as an off-site emergency planning issue.
Tr. 2131-32 (March 25, 1986).1 That Board has two judges in common with this Board.
And there is no doubt 1
This statement was also made after the filing of the March 5, 1986 Response of the Applicants referenced at page 6 of the SAPL Motion.
Thus to the extent,1f any,SAPL is seeking to argue that the applicants are estopped from arguing against their interpretaton of the " law of the case" by virtue of the March 5 response, the argument is baseless.
e e
that a Licensing Board has the authority in the first instance to rule on the scope of its jurisdiction.
Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-321, 3 NRC 293, 298 (1976).
Thus the " law of the case" is that the ETE is not an on-site issue.
Next SAPL argues that 10 CFR $ 50.57(c) requires the ETE issue to be decided.
This is argued on the theory that the Applicants' Motion for Issuance of an Initial Decision authorizing low power operation is made under 10 CFR
$ 50.57(c).
It is not.
The provisions of 10 CFR $ 50.57(c) permit issuance of an operating license up to any level L
short of full power upon satisfaction to the degree necessary of all NRC regulations relevant to the authorization requested.
The motion before the Board seeks 1
a license for up to 5% of rated power without a resolution of emergency planning issues other than those relevant to on-site emergency preparedness.
The provisons of 10 CFR 5 50.57(c) may be viewed as providing the jursidictional i
authority to authorize low power operation even where necessary safety issues are still in litigation; but this is not the case here.
Here the operation is sought on the basis that the only issues left to be litigated are the off-site emergency planning issues and thus 10 CFR
$ 50.47(d) is the governing regulaton.
Even if $ 50.57(c) were viewed as the authorizing section, SAPL still would be wrong.
All the Board needs to _- _ _ _-
w e
do vader that section is issue a decision as to " contentions relevant to the activity to be authorized."
By definition, off-site emergency planning issues are not relevant to the activity sought to be authorized given the provisions of 10 CFR $ 50.47(d).
Finally the very language of the regulation requiring an ETE makes clear that the ETE is not part of "on-site emergency preparedness," 10 CFR $ 50.47(d).
The ETE regulation 10 CFR 50 App. E $ IV, provides, in material part, as follows:
"The nuclear power reactor operating license applicant shall also provide an analysis of the time required to evacuate and for taking other protective actions for various sectors and distances within the plume exposure pathway EPZ for transient and permanent populations" (emphasis added).
" Transient and permanent populations" are hardly the way to describe persons on site.
One could argue that the site area is part of the EPZ because of the reference in 10 CFR
$ 50.47(c)(2) to it as " surrounding a particular nuclear power reactor," and therefore transients on-site are part of the transient population referred in the ETE regulation; but this ignores reality.
In the implementation document, NUREC-0654 (Rev. 1), the handling of visitors and other nonessential persons are dealt with under different criteria than is the ETE.
Compare NUREC-0654 (Rev. 1) $$ II.J.l.-6.
with $$ II.J.8, 10(1).
In short the ETE is in fact and law -
not part of "onsite emergency preparedness" as that term is used in 10 CFR S 50.47(d).
CONCLUSION For all of the foregoing reasons SAPL's position on the matter at bar should be rejected and its motion denied.
Respectfully submitted, Thomns GT Aa n, Jr.
R. K.
Gdtf III Ropes & Gray l
225 Franklin Street Boston, MA 02110 (617) 423-6100 i
CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on July 29, 1986, I made service of the within document by mailing copies thereof, postage prepaid, to:
Administrative Judge Sheldon J.
Stephen E. Merrill, Esquire Wolfe, Esquire, Chairman Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Cr.pitol Street Washington, DC 20555 Concord, NH 03301-6397 Dr. Emmeth A.
Luebke Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Robert Carrigg, Chairman Richard A. Hampe, Esquire Board of Selectmen Hampe and McNicholas Town Office 35 Pleasant Street Atlantic Avenue Concord, NH 03301 North Hampton, NH 03862 Andrea C.
Ferster, Esquire Sherwin E.
Turk, Esquire Diane Curran, Esquire Office of the Executive Legal Harmon & Weiss Director Suite 430 U.S.
Nuclear Regulatory 2001 S Street, N.W.
Commission Washington DC 20009 Washington, DC 20555 Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 Atomic Safety and Licensing Mr. Ed Thomas Board Panel FEMA, Region I U.S. Nuclear Regulatory 442 John W. McCormack Post Commission Office and Court House Washington, DC 20555 Post Office Square Boston, MA 02109
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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 Gary W.
Holmes, Esquire Mr. Peter J. Matthews Holmes & Ells Mayor 47 Winnacunnet Road City Hall Hampton, NH 03841 Newburyport, MA 01950 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.
J.
P. Nadeau 1 Pillsbury Street Selectruen's Office Concord, NH 03301 10 Central Road (Attn:
Herb Boynton)
Rye, NH 03870 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 H.
Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RED Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Judith H. Mizner, Esquire I
Washington, DC 20472 Silvergate, Gertner, Baker Fine, Good & Mizner Philip Ahrens, Esquire 88 Broad Street Assistant Attorney General Boston, MA 02110 Department of the Attorney General Augusta, ME 04333 Y]
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Thomas G. 1)ig;p6C Jr.
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