ML20207B387
| ML20207B387 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/20/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#486-1602 ALAB-853, OL-1, NUDOCS 8611240203 | |
| Download: ML20207B387 (13) | |
Text
/.[jo2.
00(:: n,prif f
'86 Nov 21 p;g:;7 UNITED STATES OF AMERICA I NUCLEAR REGULATORY COMMISSION g l 00Ckro, I
ATOMIC SAFETY AND LICENSING APPEAL BOARD ((,hb.
Administrative Judges:
Alan S. Rosenthal, Chairman November 20, 1986 Gary J. Edles (ALAB-853)
Howard A. Wilber
)ERVED NOV 21 Uf%
In the Matter of )
)
PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, --
et --..
al ) 50-444-OL-1 (Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Issues)
)
Carol S. Sneider, Boston, Massachusetts, for Francis X. Bellotti, Attorney General of the Commonwealth of Massachusetts.
Robert A. Backus, Manchester, New Hampshire, for the Seacoast Anti-Pollution League.
Thomas G. Dignan, Jr., Boston, Massachusetts (with whom R. K. Gad, III, and Kathryn A. Selleck, Boston, Massachusetts, were on the brief) , for the applicants, Public Service Company of New Hampshire, et al.
Robert G. Perlis for the Nuclear Regulatory Commission staff.
DECISION Before us is the appeal of the Attorney General of the Commonwealth of Massachusetts from the Licensing Board's October 7, 1986 memorandum and order in this operating license proceeding involving the Seabrook nuclear power l 8611240203 861120
! PDR ADOCK 05000443 l
G PDR
)So2-
2 facility.1 That order authorized the issuance of an operating license allowing fuel loading and precriticality testing at Seabrook. The Attorney General's appeal raises a single question: whether 10 CFR 50.33 (g) requires that utility applicants file a radiological emergency response plan for the entire plume exposure pathway emergency planning zone (EPZ) for the facility before any license may be issued. In this instance, it is conceded that the applicants have not submitted such a plan for the portion of the EPZ that lies within the Commonwealth of Massachusetts.
Intervenor Seacoast Anti-Pollution League (SAPL) joins in the Attorney General's appeal. In addition to endorsing his single appellate claim, SAPL advances additional discrete arguments of its own. The applicants and the NRC See LBP-86-34, 24 NRC .
We were not informed of SAPL's intentions until October 24. This was several days after our summary denial
- of the Attorney General's application for a stay of the j effectiveness of the Licensing Board's October 7 order. To l avoid delay in the disposition of the Attorney General's i
appeal, SAPL agreed to tender its brief by no later than October 30, and we permitted SAPL to participate in the October 31 oral argument to address the issue raised by the Attorney General. We also granted the applicants, the NRC
- staff and the Attorney General leave to file post-argument l supplemental memoranda addressing the separate SAPL assertions. See Appeal Board Order of October 27, 1986 (unpublished); App. Tr. 75. The applicants and the staff i
filed memoranda on November 14 (the Attorney General filed no further papers). We will rule on SAPL's claims in a subsequent decision.
l
3 staff maintain that the challenged license was properly authorized and, thus, the October 7 Licensing Board order should be affirmed.
The Attorney General's claim requires us to examine the interplay among three provisions of the Commission's -
regulations. The first is 10 CFR 50.57, which governs the issuance of operating licenses and was invoked by the applicants in their motion for a fuel loading and precriticality testing license. The second is 10 CFR 50.33, which governs the contents of license applications and, as above noted, is invoked by the Attorney General on his appeal. The third is 10 CFR 50.47, which deals with emergency plans and is relied upon by the applicants and the staff in resisting the appeal.
The prerequisites for the issuance of operating licenses are set out in 10 CFR 50.57 (a) . As pertinent here, a license may be issued upon findings that "[c]onstruction of the facility has been substantially completed, in conformity with the construction permit and the application as amended," that "[t]he facility will operate in conformity with the application as amended," and that "[t]here is e
reasonable assurance . . . that the activities authorized by the operating license can be conducted without endangering the health and safety of the public. . . .
4 10 CFR 50.57 (c) authorizes an applicant for an operating license to f
make a motion . . . for an operating license authorizing low-power testing (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.
In ruling on such a motion, a licensing board is directed to give 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 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 tg the contested activity sought to be authorized 1
The Attorney General does not contend that, in this instance, the Licensing Board failed to make any findings l that might have been required by section 50.57 (a) . Nor does he maintain either that the failure to submit emergency response plans prior to issuance of the license raises health or safety questions or that fuel loading or precriticality testing cannot be conducted in conformity with the application as submitted. Rather, as noted earlier, his sole assertion is that no type of license can be authorized here because the applicants failed to comply with the separate requirements of 10 CFR 50.33 (g) governing 3
10 CFR 50.57 (c) . '
5 the contents of applications. That section provides, in pertinent part:
If the application is for an operating license for a nuclear power reactor, the applicant shall submit radiological emergency response plans of State and local governmental entities in the United States that are wholly or partially within the plume exposure pathway Emergency Planning Zone (EPZ) . . . .
In the Attorney General's view, the application filing requirements of this section are a mandatory element of the application process for any operating license, including one limited to fuel loading and precriticality testing. As such, they are additional preconditions to issuance of the requested license. SAPL agrees.
The applicants and the NRC staff argue, to the contrary, that the submission of such plans is not a precondition to grant of a license authorizing only fuel loading and precriticality testing. Among other things, they point to 10 CFR 50.47 (d) , which provides that:
, no NRC or FEMA review, findings, or determinations concerning the state of offsite emergency preparedness or the adequacy of and capability to implement State and local offsite emergency plans are required prior to issuance of an operating license authorizing only fuel loading and/or low power operations (up to 5% of the rated power) .
Insofar as emergency planning and preparedness requirements are concerned, a license authorizing fuel loading and/or low power operation may be issued after a finding is made by the NRC that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. The NRC will base this finding on its assessment of the applicant's emergency plans against the pertinent standards in
6 paragraph (b) of this section and Appendix E of this part.
We agree with the applicants and the staff. To be sure, the requirement for the filing of state and local emergency plans contained in section 50.33 (g) does not distinguish between full-power licenses and licenses for operations at less than full power. But section 50.57 (c) acknowledges that different considerations may be relevant to an authorization for low-power as opposed to one for full-power operation. And section 50.47 (d) , which deals with emergency plans, expressly confines any examination of emergency preparedness in connection with a low-power license to an assessment of the applicant's onsite emergency plans. The Attorney General argues that we must accord literal and independent effect to section 50.33(g) so that the failure to file state or local emergency plans would stand in the way of low-power operation. In our view, section 50.33 (g), whether read in isolation or construed consistently with the provisions of section 50.57 (c) and 50.47 (d) , does not support the interpretation urged by the
- Attorney General.
To begin with, nothing in section 50.33 establishes a timetable for submission of the component parts of an l
I
7 operating license application.4 As the applicants correctly pointed out at oral argument, an operating license application is a "living, breathing" document,5 subject to change at least until full-power operation is authorized.
Thus, contrary to the Attorney General's argument, section
- 50. 33 (g) cannot be taken to require that all emergency planning components of an application be submitted before any operating license may be issued.
Further, no discernible public interest objective would be served by requiring the submission of state or local emergency plans as a condition of fuel loading or precriticality testing. On brief, neither the Attorney General nor SAPL points to any such objective. Indeed, at oral argument, both of them conceded that the applicants could easily remedy the perceived defect in the application simply by filing their own version of an offsite emergency plan for that portion of Massachusetts that falls within the EPZ.6 SAPL did assert that "the existence of a plan does provide some additional margin of safety even though it may l
4 Other provisions of the regulations, notably 10 CFR 50.30 and 50.57, provide that an application is subject to amendment.
5 App. Tr. 36, 38.
6 App. Tr. 16-17, 26-27.
i
8 not have been reviewed."7 But, given that the Commission's regulations do not require either the NRC staff or FEMA even to look at the plans when they are submitted, we cannot accept the view that a legitimate purpose behind enforcement of the section 50.33 (g) requirement at this stage is to enhance safety.8 In sum, we reject the argument that the terms of section 50.33 (g) require the submission of state or local emergency plans as a condition of fuel loading or precriticality testing.
Equally important, the Attorney General's construction of section 50.33 (g) cannot be squared with the objectives of sections 50.57 or 50.47 (d) . Portions of an application (notably offsite emergency plans) are frequently tendered 7
App. Tr. 28.
8 The staff argued that the purpose behind section 50.33 (g) can be gleaned from its administrative history.
See NRC Staff Brief in Opposition to the Appeal of the Attorney General of Massachusetts from the Licensing Board's Order of October 7, 1986.(October 24, 1986) at 5-6; App. Tr.
58-59. That provision was added to the Commission's regulations as part of the package of changes adopted in the, _
wake of the accident at Three Mile Island. In the staff's -
view, it was intended only to make clear that the filing of state and local emergency plans would be the applicant's responsibility and that such plans would henceforth be subject to FEMA and NRC review. The staff's analysis finds some support in the administrative history of the regulations. See, e.g., 45 Fed. Reg. 55,402, 55,403 (1980)
(NRC adopts " major changes" from past practice, i.e.,
requirement that an applicant submit both its own emergency plan and state and local government emergency plans; NRC will review FEMA's findings as to whether state and local plans are adequate).
9 well after the adjudicatory proceeding on that application has begun. NRC operating license proceedings, after all, are lengthy and involve the disposition of numerous and complex safety and environmental questions. Such questions are frequently tAken up at different times as particular issues become amenable to litigation.9 The purpose of section 50.57 (c) is to accord an applicant an opportunity to obtain a license authorizing low-power operation so it can test the facility even if issues unrelated to low-power operations have not yet been resolved. A reading of section
- 50. 33 (g) that would require the submission of state and local emergency plans before a low-power license can be issued would be inconsistent with that purpose.10
^
-I Further, as even the Attorney General acknowledges, section 50.47 (d) specifically states that no review or l
' See Duke Power Co. (Catawba Nuclear Station, Units 1
, _ and 2), CLI-83-19, 17 NRC 1041, 1044 (1983) (applicant's y
emergency plan may be unavailable at the beginning of a proceeding due to,the hearing schedule).
- 10 See generally Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-03-17, 17 NRC 1032 (1983) (low-power license may be issued despite any uncertainties about offsite emergency planning). In the Limerick case, by way of example, a low-power license was issued on October 26, 1984 (see 49 Fed. Reg. 44,171 (1984)),
although an emergency plan covering a portion of the EPZ, i.e., the State Correctional Institution at Graterford, Pennsylvania, was not filed until December 13, 1984. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1186-87 (1985).
'l- , ,
10 approval "concerning the state of offsite emergency preparedness or the adequacy of and capability to implement State and local offsite emergency plans" is necessary before an applicant may be authorized to operate at power levels of five percent or less.11 As the Commission explained when proposing to add section 50.47 (d) to its regulations:
When the [ emergency planning] regulation was originally drafted and finally promulgated, the question of emergency planning and preparedness licensing requirements for an operating license authorizing only fuel loading and low power operation . . . was not fully evaluated. It is apparent to the Commission that the emergency preparedness requirements for a low power license need not be as extensive as those requirements for a full power operating license. On the basis of the experience gained in emergency preparedness reviews over the last year, the Commission now concludes that evaluations of the adequacy of offsite emergency preparedness and the capability of offsite response mechanisms, as measured by the full requirements of 10 CFR 50.47 (a) and (b) and Part 50, Appendix E, are not necessar prior to issuing a low power license.$2 Although we appreciate that a distinction can be drawn d
between requiring FEMA or NRC approval of offsite emergency 11 S.ee generally Shoreham, 17 NRC at 1034 ("Section
! 50. 47 (d) gives unqualified authorization to issue a low-power license in the absence of NRC or FEMA approval of an offsite emergency plan as long as other prerequisites, including an adequate state of onsite emergency preparedness
, are met").
12 46 Fed. Reg. 61,132 (1981). See also id. at 61,133 n.1 ("The NRC will review only those elements under each of the planning criteria that are essential for determining the licensee's (not State and local agencies') preparedness").
I 11 l
plans and simply requiring their submission, we do not believe that this is what the Commission intended. In our judgment, the Commission did not contemplate that offsite emergency planning matters -- including the filing of state or local emergency plans -- would stand in the way of low-power operation.13 In the Shoreham proceeding, the Commission observed that not 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 . . . . Each regulation must be examined to determine its application and effect for fuel loading and for each phase of low power operation. Simple logic and common sense indicate that some regulations should, by their own terms, have no application to 13 The Attorney General points to certain Commission pronouncements in its 1980 emergency planning proposal to support his claim that the Commission intended that state or local plans be submitted before issuance of any operating license, even one for low power. See Attorney General Francis X. Bellotti's Application for a Stay and Brief in Support of Appeal of Licensing Board Order Authorizing Issuance of Operating License to Conduct Fuel Load and Precriticality Testing (October 16, 1986) at 4-5. The' Attorney General reads the Commission's statements too broadly. Although the Commission spoke generally of a requirement for consideration of state or local plans as a condition for issuance of an operating license without distinguishing between low power and full-power licenses, both the context of the 1980 statements and the changes brought about by the 1982 amendments make clear that it intended to confine the regulations applicable to state or local plans to full-power operations.
\
i
~
12 l
l fuel loadigg or some phases of low-power operation.
In our view, the same rationale must apply to any construction we place on Commission regulations. Because the Commission has expressly decided, both in its regulations and relevant opinions, that a low power license may be issued without regard to the state of offsite emergency preparedness, we reject the notion that the requirement governing the filing of state emergency response plans contained in 10 CFR 50.33 (g) should be deemed to be a condition for issuance of a license for fuel loading or precriticality testing.
For the foregoing reasons, the appeal of the Attorney General of Massachusetts is denied. The affirmance or reversal of the Licensing Board's October 7, 1986 order must, however, await the disposition of the other issues raised by the Seacoast Anti-Pollution League. See supra note 2.
l l
l Long Island Lighting Co. (Shoreham Nuclear Power I Station, Unit 1), CLI-84-21, 20 NRC 1437, 1440 (1984).
13 It is so ORDERED.
FOR THE APPEAL BOARD C. '- 3D - .MZ-l C. \'ean Shoemaker Secretary to the Appeal Board 4
i 1
i