ML20207J709

Memorandum & Order Denying Town of Hampton 860623 Motion & Granting Applicant 860617 Motion on Onsite Emergency Planning & Safety Issues Per Listed Mods.Served on 860725

ML20207J709
Person / Time
Site:	Seabrook
Issue date:	07/25/1986
From:	Harbour J, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel
To:	PUBLIC SERVICE CO. OF NEW HAMPSHIRE, SOUTH HAMPTON, NH
References
CON-#386-103 82-471-02-OL, 82-471-2-OL, LBP-86-24, OL-1, NUDOCS 8607290232
Download: ML20207J709 (13)

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i DOCKETED USNRC LBP-86-24 UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSI0tg gg

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ATOMIC SAFETY AND LICENSING BOA @ ~ '

Before Administrative Judgesf0CKYT NG ' Ii Sheldon J. Wolfe, Chairman BRANCH Emmeth A. Luebke Jerry Harbour SERVED JUlkggg

) Docket Nos. 50-443-OL-1 In the Matter of ) 50-444-OL-1

)

PUBLIC SERVICE COMPANY ) (On-Site Emergency Planning 0F NEW HAMPSHIRE, et _a_l_.

) and Safety Issues)

)

) (ASLBP No. 82-471-02-0L)

(Seabrook Station, Units 1 and 2) )

) July 25, 1986 MEMORANDUM AND ORDER (Rulings on Applicants' Motion of June 17, 1986, on TH's Motion of June 23, 1986, and on Hearing Matters)

Memorandum I. Background During the hearing held in August 1983, the then presiding Board heard evidence upon, among others, three contentions which related to onsite emergency planning and safety issues.1 On August 23,1983, the l

1 NECNP Contention I.B.2 asserted that Applicants had not satisfied the requirements of GDC 4 that all equipment important to safety be environmentally qualified because Applicants had failed to specify the time duration over which the equipment was qualified.

Similar Contentions NECNP III.1 and NH-20 asserted, in substance, (Footnote Continued)

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Board c'losed the record and, in an Order of September 15, 1983, directed that all parties file proposed findings. The Applicants, the NRC Staff and the Intervenor, New England Coalition on Nuclear Pollution (NECNP) filed proposed findings with respect to NECNP Contention I.B.2. The Applicants, the Staff, and NECNP filed proposed findings with respect to Contentions NECNP III.1 and NH-20, and the State of New Hampshire filed proposed findings with respect to NH-20. Applicants' reply findings were ultimately filed on November 23, 1983.

The present Board was appointed on September 9, 1985 to preside over all safety and onsite emergency planning issues. In an Order of October 4, 1985 (unpublished), noting that during the 1983 hearing certain documents relied upon by the parties were to be updated, revised or completed within a short time thereafter, the Board directed that the Staff inform it whether certain documents identified in the Order had been submitted by the Applicants and whether the Staff's evaluations of these submissions had been completed. Upon being advised by the Staff that one of the documents had not been submitted by the Applicants in i

final form and that the Staff had not completed its reviews of other submissions, our Order of November 4,1985 (unpublished) stated as l

follows:

We have reviewed the record and have concluded that the record needs to be reopened for the limited purpose of (FootnoteContinued) that the emergency plans did not contain an adequate emergency classification scheme as required by 10 C.F.R. 950.47 and Appendix E, and by NUREG-0654.

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supplementation. It is not our intention, and we will not permit the retrying of issues heard before the closing of the record on August 23, 1983. After a prehearing conference, and after discovery, if any, a supplementary hearing will be ordered to take evidence on the above-identified matters per NECNPIII.1andNH20,gainingtoContentionsNECNP1.B.2, which involve significant health and safety issues, and which were not previously ripe for hearing.

2 If NH Contention 10 is not informally resolved, evidence will be taken on that contention as well during the supplementary hearing.

Thereafter, in the Order of January 8,1986 (unpublished), the Staff was requested to furnish reports upon the status of its revisions to certain documents identified in the Order of November 4, 1985.

Ultimately, on June 4,1986, the Staff appended to its fifth monthly status report copies of Section 13.3 and Section 18, which will appear in Supplement 4 to the Safety Evaluation Report (SSER 4) when published.

Section 13.3 reflects the Staff's completed review of the Seabrook emergency classification and action level schemes (the focus of NECNP Contention III.1 and New Hampshire Contention 20). Section 18 reflects the Staff's review of the Seabrook control room design (the focus of NH Contention 10).2 On June 11, 1986, the Staff submitted copies of 2

During prehearing proceedings in 1982, the Board had pemitted the Seacoast Anti-Pollution League (SAPL) to participate as a joint intervenor with respect to NH-10. See Memorandum and Order of September 13, 1982, LBP-82-76, 16 NRC 1029, 1083. In the Memorandum and Order of July 21, 1986, among other things, the Board granted New Hampshire's motion to withdraw its Contention 10, and ruled that said contention was converted to and replaced by SAPL Supplemental Contention 6, which would reflect the identical (FootnoteContinued)

f Section 3.11, which will appear in SSER 5, when published. Section 3.11 reflects the Staff's completed review of the Applicants' environmental qualification of electrical equipment (the focus of NECNP Contention I.B.2).

On June 17, 1986, Applicants filed a motion requesting that the Board take the following actions:

1. To incorporate into the hearing record as evidence therein Section 13.3 of SSER No. 4 and the environmental qualification review submitted by the Staff under date of June 11, 1986 as Section 3.11 of SSER Supp. No. 5.

2. To issue an order directing NECNP (with respect to NECNP Contentions I.B.2 and III.1) and the State of New Hampshire (with respect to NH 20) and, if the Board deems them entitled thereto, SAPL and Mass AG to state whether they desire any cross-examination with respect to the materials incorporated ~

into the record and, if so, to state with particularity the reasons why such cross-examination is necessary to develop a sound record.

3. In the event further proceedings are requested and allowed, to schedule and hold the same as soon as possible consistent with the Board members' convenience and availability.

4. To close the record and thereafter issue a partial initial decision authorizing operation of Seabrook Unit No. 1 up to and including 5% of rated power.

II. Discussion of Submissions 0pposing, In Part.

The Applicants' Motion of June 17, 1986

1. TheTownofHampton(TH)

On June 23, 1986, in a submission, in the form of a motion, TH partially excepted to the Applicants' motion of June 17, 1986 apparently (FootnoteContinued) wording and basis of former Contention NH-10. See LBP-86-22, 24 NRC ___.

I because Applicants' motion sought to prevent interested parties and participants (other than those named in Applicants' motion) from fully participating in this proceeding. Applicants filed an opposing response on June 27, 1986, and the NRC Staff objected in a response of July 11, 1986.

We consider TH's exceptions only to the extent that, in requesting a hearing and pennission to participate, they are advanced on its own behalf and to protect its own interests.3 As Applicants point out, the Board's Order of Decemt,er 20, 1982 had directed TH to indicate with reasonable specificity the subject matters on which it desired to participate but that TH did not comply. Applicants also point out that 1 TH failed to file proposed findings with respect to the onsite emergency planning and safety issues. The Staff points out that TH does no more than assert a general desire to have a hearing and vaguely allude to the Chernobyl accident - i.e., TH fails to specify the deficiencies in the relevant sections of SSER's 4 and 5 that relate to NECNP Contentions 1.B.2 and III.1 and to NH-20. Finally, we note that at no time during the August 1983 evidentiary hearing did a representative of TH even j

appear. Clearly $2.715(c) of our Rules of Practice does not mandate 3 TH's status as a 10 C.F.R. 92.715(c) interested municipality does not make it a spokesman for other parties or participants in this proceeding. See Puget Sound Power and Light Company (Skagit Nuclear PowerTr'oject, Units 1 and 2), ALAB-556,10 NRC 30, 33 (1979); Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-544, 9 NRC 630, 632 (1979).

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f t1at an interested municipality must file proposed findings. However, Tit's failure to file proposed findings of fact, its failure to comply with the Order of December 20, 1982, its failure to appear at the evidentiary hearing upon onsite emergency planning and safety issues, and its current failure to specify the dcficiencies in the pertinent sections of the SSERs 4 and 5, compel us to conclude that TH has no genuine interest in participating in this case wherein the record has been reopened for the limited purpose of supplementing the evidence pertaining to the aforementioned NECNP and NH contentions. Accordingly, TH's motion is denied, and it may not participate.

2. Seacoast Anti-Pollution League (SAPL)

In a response of June 27, 1986, SAPL does not oppose Applicants' motion of June 17, provided all parties to this proceeding are allowed to participate in the hearing with respect to the issues allegedly resolved by Section 13.3 of SSER 4 and by Section 3.11 of SSER 5. and provided that the Board's partial initial decision will not authorize operation of Seabrook Unit No.1 up to 5% of rated power. As reflected in the cases cited in footnote 3, above, an intervenor's status as a party does not make it the spokesman for other parties and participants.

Thus, we consider only whether SAPL has a right to participate in the hearing. Further, we reject SAPL's second condition since 10 C.F.R. 52.758(a) precludes a Licensing Board from considering attacks ur challenges to the Commission's rules or regulations and since 3APL, in any event, has not complied with 52.758 procedures for petitioning that

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the application of 9550.47(d) and 50.57(c) be waived or an exception be made in this proceeding.

However, in its response SAPL, unlike TH, specifies what it deems 4

to be deficiencies in Sections 13.3 and 18 of SSER 4 and Section 3.11 of SSER 5, and states that it is entitled to participate via cross-examination in the reopened hearing.5 We also take note of the fact that SAPL, unlike TH, did attend the 1983 hearing sessions.

Finally, there can be no question but that SAPL has the right to present evidence upon and to cross-examine upon its Supplemental Contention 6 (see Memorandum and Order of July 21,1986). Thus, although SAPL did not file proposed findings of fact after the closing of the record with regard to Contentions NECNP I.B.2, NECNP III.1, and NH-20, we conclude that SAPL has shown a genuine interest in participating in the reopened hearing and may participate therein.

3. Coninonwealth of Massachusetts (Mass.)

In its answer of July 2,1986, Mass objects to the Applicants' motion of June 17 only insofar as the motion requests the issuance of an 4

With respect to Section 18 of SSER 4, SAPL incorporates by reference the reasons why it deems the Staff's review was inadequate, which were set forth in its objection of June 19, 1986 to New Hampshire's motion to withdraw Contention NH-10.

5 We are not told and we do not decide at this time whether the alleged deficiencies are within the scope of Contentions NECNP I.B.2, NECNP III.1, NH-20 and SAPL Supplemental Contention 6 (formerly NH-10). See especially footnote 3 of the Memorandum and Crder of July 21, 1986.

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9 operating license for operation not in excess of 5% rated power.

Standing alone, the objection (like SAPL's) is denied as being a challenge to the Commission's regulations which is barred by 52.758(a).

However, Mass. relies upon and incorporates by reference the Petition 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, which cites 10 C.F.R. 92.758. We have reviewed the Mass.

Petition, which had also been filed on July 2,1986, and have reviewed the Applicants' response of July 8 and the Staff's response of July 22, 1986. As will be reflected in a Memorandum and Order to be issued as soon as is possible, the Board has determined that Mass., as the petitioning party, has failed to comply with $2.758(b) and moreover has raised issues that have been previously rejected by the Commission.

Thus, the petition is being denied since Mass. has not made a prima facie showing that the application of 950.47(d) in this proceeding would not serve the purpose for which the regulation was adopted and that the application of the regulation should be waived or an exception granted.

No purpose would be served by delaying the issuance of the instant Memorandum and Order until after the formal issuance of our determination with respect to the Mass. 62.758 petition. Accordingly, we deny the objection to the granting of Applicants' motion. Mass.

attended the August 1983 evidentiary hearings and, as an interested State, it may continue to participate in the reopened hearing.

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4. New England Coalition On Nuclear Pollution (NECNP)

On July 2,1986, NECNP filed an opposition to Applicants' motion for issuance of partial initial decision authorizing low power operation. Therein, NECNP concedes that it challenges the Commission's interpretation of 10 C.F.R. 5 50.57(c) and challenges 10 C.F.R. 550.47(d). It argues that $50.57(c) "may only be interpreted to require the completion of all hearings relevant to full power operation before any license, including a license authorizing low power operation, is issued." With respect to $50.47(d), it argues that it is neither necessary nor appropriate to request a waiver pursuant to 92.758 because 550.47(d) is " contrary to the requirements of the Atomic Energy Act."

The short of it is that this Board is not the proper forum for consideration of such matters because it has neither the jurisdiction nor authority either to consider challenges to the Commission's interpretation of its own regulations or to consider challenges to a Commission regulation on the ground that it is contrary to the Atomic

! Energy Act.6 l

NECNP does not otherwise oppose Applicants' motion. It requests l

that it be permitted to participate in the reopened hearing with respect j

to its Contention I.B.2 (duration of environmental qualification).

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6 2.758(a); see Potomac Electric Power Com3any (Douglas 10 C.F.R.

Point Nuclear Generating Station, Units 1 and 2), A _AB-218, 8 AEC 79, 89 (1974).

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f Since NECNP participated in the 1983 hearing, cross-examined and filed proposed findings of fact with respe::t to Contention I.B.2 and specifies what it deems to be deficient in the Applicants' reports and in Section 3.11 of SSER 5,7 its request is granted.

ORDER

1. TH's motion of June 23, 3986 is denied.

2. Applicant's motion of June 17, 1986 is granted to the extent that, as set forth below in paragraph 3, the Board schedules a hearing.

Other parts of the motion have been granted, as modified below, in the Board's rulings on hearing matters. We grant the final part of the motion (Applicants' requested action 4) but only to the extent that the Board, in its partial initial decision, will decide, inter alia, whether or not to authorize issuance of an operating license for operation of Seabrook Unit I up to and including 5% of rated power.

3. With respect to hearing matters:

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a. During the reopened hearing, the Board will receive supplementary evidence upon NECNP Contention I.B.2 and upon NECNP III.1 and NH-20. The Board will also l

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7 We are not told and we do not decide at this time whether the alleged deficiencies are within the scope of NECNP Contention

! I.B.2. See especially footnote 3 of the Memorandum and Order of July 21, 1986, i.

1 receive evidence upon SAPL Supplemental Contention 6 (formerly NH-10).

b. Since the Staff has advised in a letter of July 23, 1986, that copies of SSER 4 were served on June 11, 1986 and that it expected that SSER 5 would be published and served within the next two weeks, the Staff should offer these two documents into evidence as exhibits in order to comply with 10 C.F.R. 2.743(g).

c. SAPL, NECNP, the State of New Hampshire and the Coninonwealth of Massachusetts, and, of course, the Applicants and the Staff may participate in this reopened but limited hearing with respect to NECNP I.B.2, NECNP III.1 and NH-20. NECND, however, indicates that it wishes to participate only with respect to NECNP Contention I.B.2. The above-named parties and States, as well as any admitted interested municipality, which has expressly shown a genuine, specific interest in the subject matter of SAPL's Supplemental Contention 6 (formerly NH-10),

may participate with respect to this contention.

d. Discovery shall begin immediately. With respect to written interrogatories and requests for production of documents, August 8, 1986 is the final due date for the serving thereof by express mail. Answers .

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I to interrogatories shall be served by express mail by August 25, 1986 and documents shall be produced for inspection and copying by that same date. Depositions shall be completed by August 25, 1986.

e. Written direct testimony shall be served by express mail by Septanber 12, 1986.

f. The reopened hearing will be held in a four-day session sometime between September 29 and October 10.

As soon as hearing room accommodations are secured, an Order will be issued specifying the date, time and location of the hearing.

g. At the beginning of the reopened hearing, the parties (including any 62.715(c) entity allowed to participate in 3c, supra) will submit only to the Board three copies of their cross-examination plans. A party (including any 92.715(c) entity) will not be permitted to cross-examine if it fails to submit a cross-examination plan. These plans must set forth the cross-examination questions to be asked, and explain what is being attempted to be established through asking a discrete question or pursuing a series of questions. Each plan will be incorporated into the recerd upon completion of a party's cross-examination.

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h. In light of the rulings on hearing matters, supra, a conference prior to the hearing will not be necessary.

The parties are expected to confer informally and resolve any procedural controversies. If there are any unresolved procedural controversies, a telephone conference call to the Board may be utilized.

THE ATOMIC SAFETY AND LICENSING BOARD M t,SChai'rman Od Sheldon J.'40 ADMINISTRATIV JUDGE Jerry Harkbur W MM ADMINISTRATIVE JUDGE he Enneth A. Luebke ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 25th day of July, 1986.

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