ML20207B401
| ML20207B401 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/14/1986 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#486-1619 OL-1, NUDOCS 8611240223 | |
| Download: ML20207B401 (10) | |
Text
CaCV.ET W W h he 1
Fn0D. & UIN N ' ' * *
- DOCKETED USNPC Dated:
November 14, 1986
- 86 NOV 21 All :23 UNITED STATES OF AMERICA CFF; ~ ~
NUCLEAR REGULATORY COMMISSION 0 0 c,c. 't.
"i before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al.
)
50-444-OL-1
)
Off-site Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues
)
)
ON APPEAL BY THE ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS FROM AN ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD ISSUED OCTOBER 7, 1986 GRANTING APPLICANTS' MOTION FOR AUTHORI-ZATION TO ISSUE LICENSE TO CONDUCT FUEL LOAD AND PRECRITICALITY TESTING MEMORANDUM OF APPLICANTS WITH RESPECT TO ADDITIONAL ISSUES RAISED IN BRIEF OF SAPL Introduction This matter was commenced by the filing of a Notice of Appeal by the Attorney General of the Commonwealth of Massachusetts with respect to an Order issued by the Atomic Safety and Licensing Board (the Board) authorizing the 8611240223 861114 PDR ADOCK 0500 3
3)So3
a Director of Nuclear Reactor Regulation (the Director) to make the necessary findings under 10 CFR 50.57(a) and to issue to the Applicants an operating license authorizing the loading of fuel and the conducting of precriticality testing.
In that Notice of Appeal and the accompanying brief, the Attorney General raised but a single issue with respect to the Board's action.
That issue was whether or not 10 CFR 50.33(g) should be read as prohibiting the Board's action.
After the Attorney General's appeal had been filed, but not yet argued, Seacoast Anti-Pollution League (SAPL), filed a document entitled " Notice of Joinder in Appeal."
Therein SAPL stated that it "hereby notices its joinder in the appeal" (emphasis added) of the Attorney General.
SAPL filed no separate Notice of Appeal of its own.
In an order (unpublished) of October 27, 1986, this 1
Appeal Board gave SAPL permission to file a brief prior to the already scheduled oral argument of the Attorney General's appeal.
In that Order, however, this Appeal Board stated that oral argument would be confined to the single issue raised by the Attorney General in his Notice of Appeal and Brief.
This Appeal Board went on to say that if SAPL raised 'other issues in its brief, an opportunity would be provided to the other parties to reply in writing to such arguments as SAPL made with respect to the new issues.
The Appeal Board also noted that the other parties would be free __
b in any such reply to argue that SAPL was precluded from raising any issues other than that raised by the Attorney General.
Under date of October 29, 1986, SAPL did file a brief.
A review of that document reveals three new issues that are raised in addition to the single issue raised by the Attorney General.
These issues are:
1.
Whether or not 10 CFR 50.47(d) requires that the Board, as opposed to the Director, make a finding that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measure can be and will be taken in the event of a radiological emergency?
2.
Whether reversal of the Board's action is required by virtue of the fact that a partial summary disposition order had been entered j
by the Board with respect to one of SAPL's contentions?
3.
Whether the action of the Board should be reversed because there is no absolute guarantee that an inadvertent criticality will not ;
occur during the conduct of the authorized activities?
At the close of the oral argument on the Attorney General's' appeal on October 31, 1986, this Appeal Board directed the Applicants to file, by mail, their response on these issues on or before November 14, 1986.
I.
THERE IS NO REQUIREMENT THAT THE BOARD, AS OPPOSED TO THE STAFF, MAKE THE " REASONABLE ASSURANCE" FINDING CONTEMPLATED BY 10 CFR 50.47(d)
SAPL argues that 10 CFR 50.47(d) requires that the Board make a finding 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 short and complete answer to this assertion is that the regulation only requires that "the NRC" make the finding.
"The NRC" is more than just the Licensing Boards.
In the case of licenses issued pursuant to 10 CFR 50.57(c) the " finding" is made not by a Licensing Board but by the Director.
It is not necessary for the Board to make this finding any more than it is necessary for the Board to make the findings listed in 10 CFR 50.57(a).
l II.
THE FACT THAT THE BOARD GRANTED
SUMMARY
DISPOSITION WITH RESPECT TO A PORTION OF SAPL SUPP. 6 IS NO REASON TO REVERSE THE ORDER Perhaps as part of the argument dealt with in Section I of this memorandum or perhaps as a separate argument, SAPL argues error arising from the fact that prior to the entry of the order at issue, the Board had partially granted a Motion for Summary Disposition which had been filed by the Applicants with respect to a contention of SAPL's denominated "SAPL Supp.
6."
In particular, what was summarily disposed of was so much of the contention as raised the issue of the adequacy of the Detailed Control Room Design Review (DCRDR) performed by the Applicants.
SAPL's entire argument on this point is as follows:
"The action of the Board here under appeal deprives SAPL of the right to seek redress at the appropriate point in future of the denial of hearing on this issue which did have relevance to the loading of fuel in the reactor at Seabrook.
Contrary to the Board's assertion, therefore, there is an issue which remains for ultimate decision pursuant to 10 CFR 50.57(c)."
SAPL Br.
at 8.
It is unclear exactly what the thrust of this argument is.
If SAPL had wished to seek review of the order at bar on the basis that it was wrongly issued because of the fact that the Board had erred in granting the Summary Disposition described above, SAPL should have done so.
It has not inasmuch as, even assuming it has the right to raise issues - -
before this Appeal Board in addition to those raised by the Attorney General, SAPL has utterly failed to give any reason in its brief as to why the decision to grant the summary disposition referenced was erroneous on the merits.
Per contra, if the main thrust of the argument is the last sentence of the above-quoted portion of SAPL's brief, the short answer is that the summary disposition order removed the issue "for ultimate decision" by the Licensing Board.
Unless and until that summary disposition action is overturned by a higher tribunal, which it certainly cannot be on the basis of the SAPL filing at bar, the contention constitutes no barrier to the action taken.1 III. THE REGULATIONS OF THE COMMISSI N DO NOT REQUIRE ANY DEMONSTRATION OF PERFECT SAFETY The final argument raised by SAPL is that there is no guarantee that there will not be an inadvertent criticality during precriticality testing.
The Applicants would concede, that.although the likeliho.od is vanishinglp small, there exists some minute possibility that an inadvertent criticality could occur during such testing.
- However, neither the Atomic Energy Act nor the Commission's 1
It remains to be seen at a later date whether or not SAPL's truncated briefing on this issue means that res judicata principles may forbid SAPL from later ever challenging the Summary Disposition Order on its merits.
regulafions require an Applicant to prove " perfect safety."
See Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003 (1973).
IV.
SAPL IS PRECLUDED FROM MAKING THE FOREGOING ARGUMENTS As set forth in the introduction above, SAPL did not file a separate Notice of Appeal in this matter.
Rather it
" joined" the appeal of the Attorney General.
It is respectfully submitted that if one " joins" anothers appeal, one is confined to the issues and arguments made by that party.
Here the Attorney General confined himself to a single issue and a single argument.
SAPL should also be so confined.
CONCLUSION The additional arguments raised by SAPL should be rejected and an order should enter dismissing the appeal of the Attorney General.
Respectfully submitted, fMEW Thofnas 'G. Q2tfFhin, Jr.
R. K. Gad III Kathryn A.
Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for the Applicants,
00t hEiiT M;;
CERTIFICATE OF SERVICE
'86 NOV 21 All :23 I, Thomas G. Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on November 14, 1986, I made service of the within document by mailing copies (F0 a ;-
thereof, postage prepaid, to:
p 3 nc Alan S.
Rosenthal, Chairman Howard A. Wilber
^
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Gary J.
Edles Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W.
McCormack Post U.S. Nuclear Regulatory Office and Court House Commission Post Office Square Washington, DC 20555 Boston, MA 02109 Helen Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 Washington, DC 20555 Dr. Emmeth A.
Luebke Diane Curran, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 2001 S Street, N.W.
U.S.
Nuclear Regulatory Suite 430 Commission Washington, DC 20009 Washington, DC 20555 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S.
Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555
a 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 Philip Ahrens, Esquire Mr. J.
P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 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 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RED 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. Peter S.
Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 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.
Washington, DC 20472 4
Gary W.
Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Judith H. Mizner, Esquire Charles P. Graham, Esquire Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110 Thchiis G.
D n,
Jr.
.