ML20207C102
| ML20207C102 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/22/1986 |
| From: | Perlis R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#486-1988 ALAB-853, LBP-86-34, OL-1, NUDOCS 8612300051 | |
| Download: ML20207C102 (15) | |
Text
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/fff DOCHETED vainc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 DEC 23 P3 :04 BEFORE THE COMMISSION In the Matter of
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)
Docket Nos. 50-443 OL-01 PI1DLIC SERVICE COMPANY OF
)
50-444 OL-01 NEW !!AMPSHIRE, et f.
)
On-site Emergency Planning l
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and Safety Issues (Seabrook Station, Units 1 and 2
)
NRC STAFF RESPONSE TO ATTORNEY GENERAL OF MASSACHUSETTS' PETITION FOR REVIEW OF ALAB-853
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Robert G. Perlis Counsel for NRC Staff December 22, 1986
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMRf!SSION In the Matter of
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Docket Nos. 50-443 OL-01 PUDLIC SERVICE COMPANY OF
)
50-444 OL-01 NEW IIAMPSHIRE, eM.
)
On-site Emergency Planning
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and Safety Issues (Seabrook Station, Units 1 and 2
)
NP.C STAFF RESPONSE TO ATTORNEY GENERAL OF MASSACHUSETTS' PETITION FOR REVIEW OF ALAB-853 Robert G. Perlis Counnn! for NRC Statt December 22, 1988
12/22/S0 UNITED STATES OF AMERICA NUCLEAR "FOULATORY COMMISSION O
BEFORE THE COMMISSION In the Matter of
)
)
Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF
)
50-444 OL-01 NEW HAMPS!!!RE, et al.
)
On-site Emergency Planning
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and Safety Issues (Scabrook Station, Units 1 and 2
)
NRC STAFF RESPONSE TO ATTORNEY OENERAL OF MASSACHUSETTS' PETITION FOR REVIEW OF ALAB-853 On December 5,
- 1986, the Attorney Oeneral of Massachusetts
(" Massachusetts") filed a petition for Commission review of the Appeal Board's decision of November 20,1986 (ALAB-853) denying Massachusetts' appeal of the October 7, 1986 memorandum and order by the Licensing Board (LDP-86-34) authorfring issuance of an operating license for Seabrook limited to fuel loading and precriticality testing.
For the reasons presented below, the Staff submits that the petition for review should be denied.
1 I.
STATEMENT OF THE CASE On August 22, 1986, the Applicants in the Seabrook proceeding filed e
a motion before the Licensing Board pursuant to 10 CFR I 50.57(c) for authorization of an operating license that would allow the Applicants to load fuel and conduct precriticality testing at Seabrook in advance of completion of the litigation concerning the remaining items under l
a i
I contention.,1I In their motion, Applicant i relied upon maintaining a boron concentration over 2000 parts per million (PPM) in the reactor coolant to assure safe operation under the proposed license.
Oppositions to Applicants' motion were filed 1 y the Seacoast Anti-Pollution League (on 1_
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August 29th),avd Massachusetts (on September 3rd).
The Staff filed responsive affidavits on September 8th and 18th; the Staff supported Applicants' motion.
On October 7th, the Licensing Board issued LEP-86-34 granting the requested authorization.
Massachusetts filed an appeal from, and requested a stay of, the 2,/
In its appeal, Licensing Board's decision on October 16th.
Massachusetts neither raised any challenge to the safe operation of the Seabrook facility under the terms of the license nor alleged any potential environmental harm.
In stead, Massachusetts' sole argument before the Appeal Board, and indeed its sole argument in its petition for review, centered around a
question of interpretation of two Commission regulations.
The two regulations involved are 10 C.F.R.
II 50.33(g) and
[
50.47(d).
Section 50.47(d) permits the issuance of operating licenses l
l 1/
The issues (other than offsite emergency planning ones) remaining
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l before the Licensing Board at that time involved the time duration
'l for the environmental qualification of electrical equipment, the acceptability of deferring various additions to the safety parameter display system until the completion of the first refueling outage, and the acceptability of Applicants' emergency classification scheme.
A Board decision upon these issues is pending.
A separate Licensing Board will consider offsite emergency planning issues; that Board has currently scheduled hearings to commence in late April,1987.
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The stay request was summarily denied by the Appeal Board on October 17th; the requested license to load fuel and conduct precriticality testing was issued on that date.
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k limited to S of rated power prior to any Staff or FEMA review of, or findings related to, offsite emergency preparedness; it states in pertinent part:
Notwithstanding the requirements of paragraphs (a) and (b) of this section, 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 rated power)...
Section 50.33 delineates the general contents of license applications; Section 50.33(g) reads 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 [EPZ), as well as the plans of state governments wholly or partially within the ingestion pathway EPZ.... [ Footnotes omitted]
It is uncontroverted that offsite emergency plans for that portion of the Seabrook EPZ located in the Commonwealth of Massachusetts have not yet been submitted to the NRC.
Under these circumstances, argued Massachusetts, the application is incomplete and no license may be issued.
The Appeal Board disagreed.
In ALAB-853, the Appeal Board concluded that, in adopting Section 50.47(d), "the Commission did not contemplate that offsite emergency planning matters -- including the filing i
of state or local emergency plans -- would stand in the way of low-power operation."
Slip Op. at 11.
The Appeal Board therefore rejected "the notion that the requirernent governing the filing of state emergency
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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." Id. at 12.
i
.... On December 5th, Massachusetts filed the instant petition for review of ALAB-853.
In its petition, Massachusetts does no more than raise the same argument it raised before the Appeal Board.
As will be shown below, the petition for review should be denied.
fr.
ARGUMENT Fetitions for review are governed by 5 2.786 at the Commission's regulations. Section 2.786(b)(4)(i) provides:
(i) A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the, common defense and
- security, constitutes an important antitrust question, involves an important procedural issue, or otherwise raises important question of public policy.
It is apparent that Massachusetts' petition does not involve an important matter that could significantly affect the public health and safety.
Massachusetts does not (and could not) contend that the failure to submit plans prior to issuance of a fuel load and precriticality testing license raises any safety questions.
Section 50.47(d) specifically states that no review or approval of offsite plans is necessary before power operation above 5% of rated power.
The basic for Section 50.47(d) was made quite plain by the Commission when the regulation was adopted: at power levels below 5% of rated power, there is simply no need for any offsite emergency plans in order to protect the public health and safety. See 47 l
l Fed. Reg. 30232 et seq. (July 13,1982) (publication of final rule); 46 Fed. Reg. 61132 et seq.
(December 15, 1981)
(notice of proposed rulemaking); cee also ALAB-853, Slip Op. at 10.
av.-
. Similarly, the petition does not appear to involve an important l
procedural issue or raise important questions of public policy.
As the Appeal Board noted in ALAB-853:
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[N]o 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
[ Massachusetts} 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 Massachusetta that falls within the EPZ.
Slip Op. at 7 (footnote omitted).
The issue raised by Massachusetts has neither the safety significance nor the public policy significance to warrant Commission review.
The only question raised by Massachusetts is one of regulatory i
interpretation concerning the interplay of Sections 50.33(g) and 50.47(d).
Essentially, Massachusetts argues that although the Commission does not require approved offsite emergency plans for operation below 5% of rated power, the Commission nonetheless intended that plans be submitted before any license could be issued.
The Staff has reviewed the legislative history of both regulations; the history contains no support for Massachusetts' position.
Section 50.33(g) was adopted by the Commission as part of the changes to the emergency planning regulations occasioned by the accident at Three Mile Island.
These changes included drastic revisions to the existing Appendix E to 10 C.F.R. Part 50, as well as the issuance of l
l 1
. Section 50.47. 3,/
The legislative history of these radical changes to the emergency planning regulations indicates that the final rules were based on the Commission's perception that better offsite emergency planning was necessary to protect the public.. health and safety in the event of an e
accident.
Thus the Commission increased the scope of the plans, and called for FEMA's review of the adequacy of the plans. See 45 Fed. Reg. 55402 g seq. (August 19, 1980) (Final Rule); see also 44 Fed., Reg.
75167 et seq.
(December 19, 1979) (Proposed Rule).
Although the discussions, accompanying the proposed and final rule were lengthy, these discussions centered upon the substantive changes under consideration.
No direct mention was made in the discussions of the addition of Section 50.33(g).
Section 50.33 does no more than list the material that must be contained in applications; the substantive requirements that must be met in an application are found elsewhere in Part 50.
Under the circumstances, it seems logical to conclude the purpose of adopting Section 50.33(g) was to serve as an additional reminder that offsite emergency planning requirements (contained not in Section 50.33(g) but rather in Section 50.47 and Appendix E) must be met, and to make clear that, even though offsite plans were the focus of these important new safety regulations, Applicants (rather than offsite authorities) were l
responsible for the ministerial task of providing these plans to the NRC.
l The Commission adopted Section 50.47(d) less than two years after promulgating the sweeping changes to the emergency planning regulations l
l
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Section 50.47 and Appendix E to Part 50 contain the Commission's prescriptive requirements for emergency planning for nuclear power plants.
a
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described above.
As noted earlier, the basis for the adoption of Section 50.47(d) was the Commission's factual determination that offsite emergency planning was simply not needed to protect the public health and safety during low power operations.
Massachusetts takes the position that the requirement of plan submission is quite distinct from the requirement that findings be made as to the adequacy of such plans.
As shown above, the historical development of the two requirements was not distinct at all; Section 50.33(g) was adopted at the same time as the Commission's revised substantive emergency planning regulations.
Nor is there any reason to assume that the regulations were intended to operate separately.
There is nothing in either the legislative history or Commission precedent which supports a conclusion that the Commission intended plans to be submitted when (as during low-power operation) they are not needed to protect the public health and safety, or indeed that the Commission intended Section 50.33(g) to accomplish any purpose other than assuring that the applicable substantive emergency planning requirements (contained in Section 50.47 and Appendix E) were met.
As the Appeal Board noted in ALAB-853, the interpretation placed upon Section 50.33(g) by Massachusetts is inconsistent with the Commission's purposes in adopting Sections 50.47(d) and 50.57(c), which together clearly allow low power licenses to be issued prior to resolution of offsite emergency planning issues. Slip. Op. at 8-9.
Massachusetts seems to assume that the Commission mandates that compliance with all regulations be demonstrated before any operation can be authorized.
The Appeal Board correctly found to the contrary,
. pointing out that the Commission in.the Shoreham proceeding ruled 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.... " Slip Op.
at 11-12, citing Long Island Lighting Company (Shoreham Plant, Unit 1),
1440 (1984).
In CLI-84-21, the Commission determined that GDC 17 was not applicable to fuel loading and precritical and cold critical testing because under no circumstances at such power levels would AC power be needed to protect the public health and safety.
20 NRC at 1439.
Applying that logic to the facts of this case, Section 50.33(g) would be similarly inapplicable to fuel loading and precriticality testing activities since it is uncontroverted that offsite plans are not needed to protect the 5,/
public health and safety before operation above 5% of rated power.
Other than pointing to the language of Section 50.33(g), the only basis Massachusetts provides for its position is a decision by the Licensing Board in the Shoreham proceeding. See LBP-83-22,17 NRC 608 (1983).
But that decision does not support the proposition that offsite emergency plans must be submitted before a low-power license may issue.
-4/
GDC 17 establishes requirements for the onsite and offsite electric power supplies at nuclear power plants.
-5/
The Commission also made clear in the Shoreham proceeding that a low power license can be issued without regard to speculation as to whether offsite emergency planning problems might serve as a bar to issuance of a full power license.
See Long Island Lighting Com?any (Shoreham Plant, Unit 1), CLI-84-9,19 NRC 1323 (1984); CLI-80-17, 17 NRC 1032 (1983).
If speculation on the ultimate resolution of emergency planning issues le unnecessary at the time issuance of a low-power license is considered, speculation on whether plans will ever be submitted seems equally unnecessary.
-g-In LBP-83-f2, the Licensing Board determined that a license applicant was required to submit offsite plans prepared by governments in order to receive a full-power operating license, but further determined that the applicant could demonstrate.
pursuant to 10 C.F.R.
Section that the absence of government-sponsored plans should 50.47(c)(1),
not serve as a bar to licensing.
17 NRC at 620-627. O If Section 50.47(c)(1) were applied to the issuance of a license to load fuel and conduct precriticality testing, any and all offsite planning deficiencies would be insignificant because, for operation at power levels below 5% of rated power s offsite emergency planning is necessary.
See 10 C.F.R.
I 50.47(d).
Alassachusetts relies in its petition on the proposition that, despite the fact that offsite emergency planning has no safety significance for 4
operation at power levels of belor 5% of rated power, the submittal of such plans is nonetheless required before a license to load fuel and
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Section 50.47(c)(1) provides that where an applicant fails to meet the substantive emergency planning requirements of Section 50.47(b), the applicant will be given an opportunity to demonstrate that the deficiencies are not significant for the plant in question, that adequate interim compensating measures have been taken, or that other compelling reasons exist to permit plant operation.
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LBP-83-22 was the Shoreham Licensing Board's response to a motion by the intervenors to terminate the proceeding because of the lack of state and county emergency plans.
The Board rejected the applicant's position that the requirement to submit plans applied only where offsite governments actually prepared plans, but ruled that a utility could submit its own plan, and therefore denied the motion to
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terminate.
The Commission affirmed that portion of LBP-83-22 that denied the motion to terminate; the Commission indicated its agreement that the Licensing Board should examino the acceptability of a utility-submitted plan without specifically addressing the Board's ruling that an applicant was required to submit some plan.
. conduct prderiticality testing can be issued.
There is no indication that such a result was contemplated when Sections 50.33(g) and 50.47(d) were promulgated, and logic and Commission precedents seem to strongly suggest the contrary.
.The Appeal Board correctly refected Massachusetts' position; the petition for review should be denied.
III.
CONCLUSION For the reasons presented
- above, the Staff submits that Massachusetts' petition for review should be denied.
Respectfully submitted, Rekr+ G. Pxlia y Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of December,1986 r
l l
COLKETED UNITFD STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'85 DEC 23 P3 :04 o
BEFORE TIIE COMMISSION 00CF.! %
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In the Matter of
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Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF
)
50-444 OL-01 NEW IIAMPSHIRE, eM.
)
On-site Emergency Planning
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and Safety Issues (Seabrook Station, Units 1 and 2
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ATTORNEY GENERAL OF MASSACHUSETTS' PETITION FOR REVIEW OF ALAB-853" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first ciasc or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by double asterisks, by express mall, this 22nd day of December,1986.
Sheldon J. Wolfe, Esq., Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge i
Atomic Safety and Licensing Board Atomic Safety and Licensing Board
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U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour
- Pfs. Carol Sneider, Esq.**
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor i
Washington, DC 20555 Boston, MA 02108 Helen Hoyt, Esq., Chairman
- Gary W. Holmes, Esq.
Administrative Judge Holmes a Ellis Atomic Safety and Licensing Board 47 Winnacunnet Road i
U.S. Nuclear Regulatory Commission Hampton, NH 03842 e
Washington, DC 20555 Sandra Gavutis, Chairman Calvin A. Canney, City Pfanager Doard of Selectmen City IIall RFD 1 Box 1154 126 Daniel Street Kensington, NII 03827 Portsmouth, NH 03801 l
-__,..._..__-_.__________,._m..
, Stephen E. Merrill Paul McEachern, Esq.
Attorney General Matthew T. Brock, Esq.
George Dana Bisbee" Shaines a McEachern Assistant Attorney General 25 Maplewood Avenue o
Office of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear e
Angie Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls 25 High Road Drinkwater Road Newbury, MA 09150 Hampton Falls, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq.
Robert A. Backus, Esc,."
McKay, Murphy and Graham Backus, Meyer & Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.
Philip Ahren, Esq.
Harmon a Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr., Esq.
Federal Emergency Management Agency Ropes & Gray 442 J.W. McCormack (POCII) 225 Franklin Street Boston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq.
William Armstrong Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter l
500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 Atomic Safety and Licensing Atomic Safety and Licensing o
Appeal Panel
- Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Jane Doughty, Docketing and Service Section*
Seacoast Anti-Pollution League Office of the Secretary 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555 O
Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, NH 03287 Newburyport MN 09150 Mr. Robert Carrigg, Chairman Judith H. Misner, Esq.
Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street North Hampton, NH 03862 Boston, MA 02110 R. K. Gad III, Esq.
Mrs. Anne E. Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Deverly Hollingworth Richard A. Hampe, Esq.
209 Winnacunnet Road New Hampshire Civil Defense Agency llampton, NH 03842 107 Pleasant Street Concord, NH 03301 win Jf. Reis DeputyAssistant General Counsel o
e