ML20206C979

Petition of Atty General Fx Bellotti to Revoke Regulation 50.47(d) or in Alternative to Suspend Application in Seabrook Licensing Proceeding.* Certificate of Svc Encl

ML20206C979
Person / Time
Site:	Seabrook
Issue date:	07/02/1986
From:	Sneider C MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206C684	List: ML20206C682 ML20206C758 ML20206C869 ML20206C979
References
OL, OL-1, NUDOCS 8704130208
Download: ML20206C979 (11)

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_ UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION betore the {

ATOMEC SAFSTt AND LICENSINGLBOARD j

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In the matt.et of )

) Docket Nos. 50-443-OL-1

] i PUBLIC SERVICE COMPANY OF ) 50-444-OL-1 NEW HAMPSHIRE, et al. ) On-site _ Emergency' Planning. .

) 'and Safety Issues (Seabrook Station,: Units 1 and 2) _.) ) Dated: July.2, 1986~

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PETIIION OF ATTORNEY GENERAL FRANCIS X. BELLOTTI TO REVOKE REGULATION 50.47(d) OR IN THE ALTERNATIVE TO SUSPEND ITS APPLICATION IN THE SEABROOK LICENSING PROCEEDING Attorney General Francis X. Bellotti, acting pursuant to 10-C.F.R. S2.758, hereby petitions the Commission to revoke the regulation appearing at C.F.R. 550.47(d), or in the alt'ernative to suspend its application in ene present proceeding,.'and_as grounds therefor states the following:

(1) Section 189a of the Atomic Energy Act, 42 U.S.C.

S2239(a) (1982), provides a right to a prior hearing on all issues material to issuance of an operating license. Uni'on of concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984).

.. (2) Regulation 50.47(a) permits the issuance of an operating license authorizing fuel loading'and/or low power 8704230208 870406 E~

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i operation at up to 5% of rated power before any findings or determinations are made "concerning the state of off-site emergency preparedness or the adequacy of and capability to implement state and local off-site emergency plans." 10 C.F.R.

S50.47(d).

(3) Insofar as Regulation 50.47(d) allows issuance of an operating license, even at less than full power, prior to a hearing on all issues relevant to licensure, including off-site emergency planning, it violates the statutory right to a hearing provided by section 189a and must be held invalid.

(4) No nearing has'yet been held in the instant case on off-site emergency planning issues, and regardless of any economic or safety justifications for Regulation 50.47(d) or the fact that a hearing on emergency preparedness issues will be held prior to full-power authorization, operation of the Seabrook nuclear power plant at 5% of rated power will create significant irreversible consequences. Among these irreversible consequences will be irradiation of the plant, significant fuel irradiation, and worker exposure. See Affidavit of Albert Carnesale; Affidavit of Dale G. Bridenoaugn and Gregory C. Minor (prepared for Shoreham licensing proceeding but relevant hereto). None of these consequences can be mitigated by a later hearing, and thus application of Regulation 50.47(d) will effectively deny interested parties their right to a prior hearing on all issues relevant to licensure.

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4 (5) Regulation 50.47(d)_which, together with Regulation 50.57(c), authorizes temporary low-power operation prior to-a hearing on all issues relevant to licensure is furthermore in violation of the Atomic Energy Act's statutcry scc.eme which twice, on an emergency basis, authorized the issuance of temporary low-power operating licenses prior to completion of a full hearing on all issues relevant to licensure ~but no longer authorizes such temporary low-power licenses. See 42 U.S.C.

S2242 (expired December 31, 1983).

Even if there did exist statutory authority for Regulation 50.47(d) special circumstances warrant an exception to its application in the instant proceeding:

(1) No emergency response plans have been submitted to FEMA or the NRC for that portion of the Seabrook Station's plume exposure EPZ or ingestion exposure EPZ within Massachusetts. See Affidavit of Secretary of Public Safety Charles V. Barry (attached hereto).

(2) Five of the six Massachusetts communities within the plume exposure pathway have voted not to participate in emergency planning and not to participate in any exercise of emergency response plans for Seaorook. See Affidavit of Charles V. Barry.

(3) The Governor of Massachusetts has not to date indicated any intention to submit, or implement in the event of an emergency, compensatory plans for the five Massachusetts t

communities not participating in emergency planning. See  !

Affidavit of Charles V. Barry.

I g- 1 (4) Furthermore the Governor of Massachusetts has not to date indicated any intention to submit state emergency response plans for the Commonwealth of Massachusetts or to commit state resources to tne exercise or implementation of emergency response plans for Seabrook. Indeed, he has ordered the planning process suspended while he attempts to gather information on tne Chernobyl accident. See Affidavit of Charles V. Barry.

(5) Regulation 50.47(a)(1) provides that "no operating license for a nuclede power reactor will be issued unless a finding is made by NRC that there is " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological amergency." 10 C.F.R. 50.47(a)(1).

(6) Without participation oy the Massachusetts state and local governments in energency planning, it is unlikely that the requisite section 50.47(a)(1) finding for licensure can ce made for the Seacrook plant or that the regulatory emergency planning standards set fortn in section 50.47(o) can ne met, thus raising a strong likelihood that the seaorook nuclear power plant may never receive a license to operate at full-power, or that if it does receive such license it will not do so until after several years of litigation. See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1)

ALAB-88, 22 NRC 651 (19d5).

(7) Tne purpose of low power operation is to allow testing of plant systems prior to full-power operation, which testing 4-

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can typically be accomplished in a period of a few months.

'See, e.g., Notice of Proposed Rulemaking, Emergency Planning, 46' Fed. Reg. 61132, 61133 (December 15, 1981).

-(8) No Denefit can be derived from low-power operation if the reactor does not receive a license to operate at full-power and little, if any, oenefit can be derived from continuing l low-power operation beyond the several months required for l testing. See Dale G. Bridenbaugh and Gregory C. Minor.

(9) Nevertneless, operation'at low-power does produce significant irreversible consequences, such as plant irradiation, fuel irradiation and worker exposure, which consequences only increase the longer a plant operates at lowe,r-power. See Affidavit of Albert Carnesale and Affidavit of Dale G. Bridenbaugh and Gregory C. Minor.

(10) In promalgating Regulation 50.47(d) the Commission contemplanted that low-power operation would oe conducted only for a period of short duration. See Notice of Proposed

Rulemaking, supra at 61133; Statements of Consideration, Emergency Planning, 47 Fed. Reg. 134 (July 13, 1982).

(11) It is therefore Attorney General dellotti's contention that Regulation 50.47(d) should be waived in tne instant case where enere is no assurance that operation at

full-power will ever occur and if it does occur will not occur for nearly a year, or possibly years, and thus any possible benefits to De attained from commencing low-power testing at this time will be far outweighed of the significant and L

1-irreversible adverse environmental consequences of such operation. See Affidavit of Dale G. Bricenbaugh and Gregory C.

Minor, e

(12) In its Statement of consideration for Regulation i 50.47(d), the Commission asserted as basis for its i

determination that off-site emergency planning was not required-for low-power operation that there would be little off-site ,

i risk oecause "the fission product inventory during low power testing is much less than during higher power operation due to-the low level of reactor power and short period of operation." -

See, Statements of Consideration, Emergency Planning 47 Fed.

Reg. 30232 (September 1, 1982).

(13) Nevertheless operation at 5% of rated power for a longer period of time will at some point lead to the accrual of waste products in tne fuel sucn that core melting could occur in the event of the interruption of the core cooling. See Affidavit of Gordon R. Thompson.

(14) If Applicants presently receive their license to operate at low-power, such operation is very 11Kely to Continue for a period of time mucn longer than that contemplated by the Commission in promulgating degulation 50.47(d), theceby raising a risk of off-site consequences not intended oy the Commission in adopting Regulation 60.47(d). See Affidavit of Gordon d.

Thompson.

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(16) Regulation 50.47(d) should further be-waived'until such time as there is conducted a full investigation and

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assessment of the recent nuclear accident at Chernobyl, its causes and the implications of such accident ~for off-site l

planning (cased upon available information,.that accident required the evacuation of all persons within an 18 mile radius of the. plant even thougn tne Chernobyl reactor was'only operating at approximately 6% of rated power when the accident occurred).

Respectully suomitted, FRAT 4CIS X. BELLOTTI ATTORNEY GCNERAL By: Carol S. Sneider Assistant Attorney General-Environmental protection Division Department of the Attorney General One Ashburton place, Room 1902 Boston, MA 02108 (617)727-2265 DATED: July 2, 1986 1

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1 00CKETE0 USNRC j

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 APR -7 N1:23

! ) 0FFICE OF St.CPdAkY In the Matter of ) 00NgjgCfi 1

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PUBLIC SERVICE COMPANY OF NEW )

HAMPSHIRE, ET AL. Docket No.(s) 50-443/444-OL

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(Seabrook Station, Units 1 and 2) )

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CERTIFICATE OF SERVICE I, Donald S.

Bronstein, hereby certify that on April 6, 1987 I made service of the within documents, by mailing copies thereof, postage prepaid, by first class mail, or as indicated by an asterisk, by Federal Express mail, to:

Helen F. Hoyt, Chairperson Gustave A. Linenberger, Jr.

Atomic Safety & Licensing Board Atomic Safety & Licensing Board 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 Third Floor Mailroom Third Floor Mailroom Bethesda, MD Bethesda, MD 20814 20814 i Dr. Jerry Harbour i Atomic Safety & Licensing Board *Sherwin E. Turk, Esq.

U.S. Nuclear Regulatory Office of the Executive Legal i

Commission Director

! East West Towers Building U.S. Nuclear Regulatory Commission i

4350 East West Highway Tenth Floor

( 7735 Old Georgetown Road Third Ploor Mailroom Bethesda, MD 20814 Bethesda, MD 20814 H. Joseph Plynn, Esq. Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee l

Pederal Emergency Management Assistant Attorney General l Agency

! 500 C Street, S.W. Office of the Attorney General 25 Capitol Street l Washington, DC 20472 concord, NH 03301 I

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• Docketing and Service Paul A. Fritzsche, Esq.

I U.S. Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 Washington, DC. 20555 Augusta, ME 04333 l t Roberta C. Pevear Ms. Diana P. Randall

< State Representative 70 Collins Street l Town of Hampton Falls Seabrook, NH 03874 i Drinkwater Road Hampton Falls, NH 03844

• Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq. J. P. Nadeau Matthew T. Brock, Esq. Board of Selectmen Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, NH 03801 Ms. Sandra Gavutis, Chairperson Mr. Calvin A. Canney i Board of Selectmen City Manager RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street E. Kingston, NH 03827 Portsmouth, Nil 03801

• Senator Gordon J. Humphrey Mr. Angelo Machicos, Chairman

U.S. Senate Board of Selectmen i Washington, DC 20510 25 High Road i

(Attn: Tom Burack) Newbury, MA 10950

) Senator Gordon J. Humphrey Mr. Peter J. Matthews l 1 Eagle Square, Suite 507 Mayor l

Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 l Mr. Donald E. Chick Mr. William Lord i Town Manager Board of Selectmen Town of Exeter Town Hall 10 Pront Street Friend Street Exeter, Nil 03833 Amesbury, MA 01913 l

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Brentwood Board of Selectmen Gary W. Holmes, Esq.

RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 Philip Ahrens, Esq. Diane Curran, Esq.

Assistant Attorney General Harmon & Weiss l Department of the Attorney Suite 430 l General 2001 S Street, N.W.

State House Station 96 Washington, DC 20009 Augusta, ME 04333

• Thomas G. Dignan, Esq. Richard A. Hampe, Esq.

R.K. Gad III, Esq. Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 1 Boston, MA 02110 Beverly Hollingworth Edward A. Thomas j 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 1

442 J.W. McCormack (POCH)

Boston, MA 02109 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director Atomic Safety and Licensing Town of Brentwood Board Panel 20 Franklin Street U.S. Nuclear Regulatory Commission Exeter, NH 03833 Washington, DC 20555 i

Dr. Emmoth A. Luebke Charles P. Graham, Esq.

! Atomic Safety & Licensing Board McKay, Murphy & Graham U.S. Nuclear Regulatory Old Post Office Square Commission 100 Main Street East West Towers Building Amesbury, MA 01913 4350 East West Highway Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814 Judith H. Mizner, Esq. i Silvergate, Gertner, Baker, '

Fine, Good & Mizner 88 Broad Street '

Boston, MA 02110 l

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Rep. Edward J. Markey, Chairman

• Alan S. Rosenthal, Chairman U.S. Hcuse of Representatives Atomic Safety & Licensing Subcommittee on Energy Appeal Board Conservation and Power U.S. Nuclear Regulatory Commission Room H2-316 East West Towers Building House Office Building Third Floor Mailroom

Annex No. 2 4350 East West Highway l Washington, DC 20515 Bethesda, MD 20814 Attn

Linda Correia l

• Gary J. Edles *Howard A. Wilber Atomic Safety & Licensing Atomic Safety & Licensing l Appeal Board Appeal Board i U.S. Nuclear Regulatory U.S. Nuclear Regulatory commission Commission East West Towers Building East West Towers Building l Third Floor Mailroom Third Ploor Mailroom 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 i

feb.' kb w Donald S. Bronstein Assistant Attorney General Environmental Protection Division f Department of the Attorney General One Ashburton Place, Room 1902 Boston, MA 02108 (617) 727-2265 Dated: April 6, 1987 t