ML20206H057
| ML20206H057 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/07/1987 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CON-#287-3069 CLI-87-02, CLI-87-2, OL-1, NUDOCS 8704150240 | |
| Download: ML20206H057 (10) | |
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UNITED STATES OF AMERICA MC NUCLEAR REGULATORY COMMISSION
'87 APR -9 P4 $7 C0tMISSIONERS:
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r :,,e Lando W. Zech, Jr., Chaiman 00CMEips,. ; v.a Thomas M. Roberts
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James K. Asselstine Frederick M. Bernthal Kenneth M. Carr SERVfD APR -9 g
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In the Matter of PUBLIC SERVICE COMPANY OF Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, ET AL.
50-444-OL-1
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(Onsite Emergency Planning (Seabrook Station, Units 1
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and Safety Issues) and2)
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MEMORANDUM AND ORDER CLI-87 02 Introduction This decision completes the Comission's review of a single issue:
whether a utility applicant must submit a radiological emergency plan (either a governmental plan or a utility plan) for the entire plume exposure pathway emergency planning zone (EPZ) for the facility before the Connission may issue any operating license, including one conditioned to pemit only fuel loading or operations at less than 5%
power.
It is uncontroverted that when this issue came before the Comission no plan had been submitted for that entire portion of-8704150240 870407 D
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Massachusetts that is situated within the boundaries of Seabrook Station's EPZ and constitutes roughly one third of the EPZ.1
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In its January 9,1987 order announcing that it was undertaking review sua sponte,2 the Comission said that it believed it could decide the issue presented on the basis of the previously filed briefs.
Nonetheless, the parties were permitted a full round of briefing, if they wished it.3 10n the eve of affirming this decision the Comission received i
notification from PSNH that it was submitting a utility emergency plan i
for that portion of the EPZ that lies in Massachusetts.
In that light, i
PSNH suggested that the instant review is moot and requested the Comission to lift its stay.
In view of the lateness of PSNH's motion,.
and the policy importance of the matter under Comission consideration, the Comission has decided to proceed with its decision, and to treat PSNH's motion as a request to vacate today's decision on grounds of mootness and to vacate the stay on the ground that the concerns which underlie the stay have been alleviated. Views of the parties on the question of mootness and any other matters relevant to the maintenance of the stay are required on the following schedule:
All answers from other than NRC Staff - filed by April 28, 1987 NRC Staff answer - filed by May 1, 1987 Massachusetts Attorney General Bellotti petitioned for review as Comission consideration of sua sponte review was underway.
Inclined to have this matter decided at the Comission level, the Comission decided not to delay its sua sponte decision for the process to consider pleadings for and against review.
In that Massachusetts sought review of the same issue, its petition is in effect granted.
In its filing before us New England Coalition for Nuclear Pollution (NECNP) sought among other things reconsideration of the Commission's Shoreham decision. The Comission declines NECNP's invitation and specifically limits its review to the issue specified.
3The following parties participated in the permissive briefing i
schedule: Attorney General Bellotti of the Comonwealth of i
Massachusetts (later substituting Attorney General Shannon), Seacoast Anti-Pollution League (SAPL), NECNP, Town of Hampton, PSNH, and the NRC (FootnoteContinued) l l
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3 As we discuss below, on consideration of the views of the parties, the Conslission has decided not to affim the Appeal Board's decision.
1 In so doing, we have decided to take no action with respect to the 4
outstandinglicenseforfuelloadingandprecriticalitytestiAg because there is no safety benefit to be derived from removing the fuel; i
i moreover, fairness suggests in any event the need for a Connission decision on PSNH's mootness motion before taking any such action i
regarding the outstanding license. Today's decision is fully applicable to any license for Seabrook that authorizes criticality and low-power operation.
I Positions of the Parties The Applicant and the NRC Staff argue for affimance of the decision under review. They urge that in promulgating its rule on submittal of emergency plan applications, 10 C.F.R. 50.33(g), the Commission never intended to establish submittal of offsite emergency plans as a licensing requirement independent of the ultimate required findings on the plans. They further contend that 10 C.F.R. 50.47(d),
which eliminates findings on the adequacy of offsite emergency planning (Footnote Continued) staff.
We also note receipt of a brief amicus curiae submitted by fomer Senator Gary Hart. The brief did not address the specific issue on which we accepted review.
4A license for fuel load and precriticality testing was granted and was appealed. While the Appeal Board denied a stay request made by the Attorney General of Massachusetts, it expedited review presumably so i
that the matter could be resolved, if possible, in advance of readiness for low power testing.
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as a precondition to issuance of a license for low-power operation, makes it clear that emergency plans need not be submitted by that stage.
Finally, they can find no policy reason to support such a requirement.
On the other side, some or all of Intervenors (Massachusetts' incumbent Attorney General Shannon, NECNP, SAPL and the Town of Hampton) argue that the express language of the rules requires plan submittal, while express language of 50.47(d) does not list submittal of an emergency plan as one of the requirements to be omitted from consideration when licensing for low-power operations. They argue that sound policy favors a requirement for a substantially complete application--that the Applicant do all that it can do--before the risks l
and disadvantages of low-power testing are permitted. This is so, they say, because so long as an adequate plan for Massachusetts is required, until it is at least filed, issuance of a full power license cannot at all be reasonably anticipated.5 Decision This is a matter of first impression. We find no evidence that the Consnission has ever before specifically considered by when the l
SIntervenors also suggest that Congress itself has found utility in requiring submittal of an application before allowing low power testing as is evidenced by the structure of Section 192 of the Atomic Energy Act.
Interveners proffer various other policy considerations that they believe are served by requiring early submittal of plans, including an increment of additional safety as a result of early planning, less pressure on FEMA, and expedition of hearings.
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applicants must submit the emergency plan.6 The statements of consideration and discussion of proposed rules 50.33(g) and 50.47(d)
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include no insight on this issue. Nor has any licensing hearing presented this question.
It is contended by those seeking affirmance of ALAB 853 that the Commission's Shoreham decision governs this matter. The issues in Shoreham were raised in connection with alleged grave uncertainty about whether eventual findings on the submitted LILCO (Long Island Lighting Company) emergency plan would support issuance of a full power license.
In that context the Commission noted that low-power testing has independent benefits, including the avoidance of potential delay if and when a full power license is issued, and that the earlier low-power testing was initiated the more likely that its full benefits would be i
reaped on a timely basis. The Commission concluded that disputes about the eventual decision on the merits of issues under consideration for a full power license should generally not interfere with the low-power testing.
But the disputes which fueled the controversy in Shoreham were, by their nature, litigation and political disputes. And, as noted by the U.S. Court of Appeals for the District of Columbia Circuit, we observed in regard to Shoreham, "the outcome of litigation and political conflicts frequently surrounding the grant of a final license is particularly speculative." Cuomo v. NRC, 772 F.2d 972, 976 (D.C. Cir.
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1 6The Commission believes that it is abundantly clear that a plan must at some time be submitted, and considers that the issue raised addresses only the timing of that submittal.
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1985). The emergency planning uncertainty at Shoreham could have changed favorably or adversely at any time as viewpoints changed or as accommodations were reached. This is characteristic of many matters in litigation, and the Connission properly declined to regard the existence of such litigation as a factor precluding issuance of a low-power 4
license. But the issue before us in Seabrook is distinguishable from Shoreham -- here we deal not with speculation as to the outcome of hearing litigation, but with the conclusions to be derived from the proposition that some of the materials that normally are essential to support a full power license under our regulations were missing.
As summarized above, arguments based on the language of the rules have been made by both sides. We acknowledge that there is some merit I
to both sides' positions, and we consnend the Appeal Board for its
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careful analysis of the question. But the question before us is not a strictly legal one, but rather a question of regulatory policy which ultimately we alone should decide. In the special circumstances of this case our judgment is that sound policy favors requiring the filing of a State, local, or utility plan before any operating license is issued, including a license confined to fuel loading or low-power testing.
In Shoreham, we specifically observed that the emergency planning issues raised there did "not appear to us to be categorically unresolvable," CLI-83-17, 17 NRC 1032 at 1034 (1983), and we did not discount the possibility that a license for fuel loading and low-power testing could be held up if it were established, beyond significant doubt, that there were truly insuperable obstacles to issuance 6f a license for operation at any substantial power level. We believe that sound policy requires that we retain this option at least for Seabrook.
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The filing of an offsite plan makes possible at least a sumary review,
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of the type we performed in Shoreham, to determine whether adequate emergency planning is at least in the realm of the possible. Thus applicants must do at least this much before there can be any license issued.
The Comission stay remains in effect pending consideration of PSNH's " Suggestion of Mootness and Request for Vacation of Stay" in accordance with footnote 1 to this decision.
Commissioners Roberts and Carr disapproved this Order, their dissenting views are attached. Comissioner Asselstine's additional views are also attached.
It is so ORDERED.
c For the Comission
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,4cting Secretary for
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,/ JOHN C. H0YLE f' 4.$
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7 the Comission i
4, Dated at shington, D.C.
this f " day of April,1987.
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ADDITIONAL VIEWS OF C0mISSIONER ASSELSTINE I concur in the result reached in the Comission's order, but I do not necessarily subscribe to all of the reasoning therein.
I believe that, as a i
matter of policy, the Comission should not issue a low power license to a plant when there are fundamental uncertainties about whether the plant can be licensed.
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DissentingViewsofCommissionerRobertsI I would affirm ALAB-853.
To require, prior to issuance of a low power license, submission of a utility plan for the portion of the EPZ that lies within the Commonwealth of Massachusetts serves no legitimate regulatory purpose and is incon-sistent with our earlier action in the Shoreham case. The majority's reasons for distinguishing the Shoreham situation from the Seabrook situation are feigned. Moreover, to require, solely for the sake of completeness, submission of a document that has no bearing on the findings required by our regulations for issuance of a low power license is to worship form over substance.
To reverse the legally correct and sensible position of ALAB-853 for the sole purpose of sending a signal to the applicants and the public that the Commission is not likely to approve a reduction in the size of the EPZ at Seabrook is wrong. That message can and should be transmitted more clearly and directly.
I believe that the choice of which path to pursue, seeking a reduction in the size of the EPZ or filing a utility plan for Massachusetts, and whether to risk a delay in licensing by taking the path they choose, should be left to the applicants and that, absent a valid safety basis for doing so, we should not interfere in their choices.
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Dissenting Views of Comissioner Carr I would affirm the Appeal Board's decision in ALAB-853 because the Appeal Board interpreted the regulations at issue correctly and sensibly. Submission of a plan has no bearing on the findings required by our regulations for low-power licensing and elevates fonn over substance.
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