ML20207P732

Requests That Commission Assume Responsibility for Plant Offsite Emergency Planning Proceedings.Special Board Should Be Constituted to Conduct Proceedings Re Util Petition to Waive 10-mile EPZ Requirement.Served on 870115

ML20207P732
Person / Time
Site:	Seabrook
Issue date:	01/13/1987
From:	Markey E HOUSE OF REP., ENERGY & COMMERCE
To:	Zech L NRC COMMISSION (OCM)
References
CON-#187-2204 OL, NUDOCS 8701200140
Download: ML20207P732 (5)

Text

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, '? ??_]lc5.. 6'. .n fV3/. 4H~ oL Congress of tije Ilinitch 6tates ygF Douse of Representatibes Ceann(ttee .a faergy ant Ceaunette m mi25. mar m . esar u.aias '87 JAN 14 Al1 :37 Washington, B.C. 20515

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January 13, 1987 jFf The Honorable Lando W. Zech, Jr.

Chai rman hERVED JAN 15 Iggy U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

Dear Mr. Chairman:

! I am writing to request that the Commission exercise its '

inherent supervisory authority and immediately assume responsibility for the Seabrook offsite emergency planning proceedings (Docket Nos. 50-443-OL; 50-44 4-00; ASLBP 82-471-02-OL) now pending before the Atomic Saf ety and Licensing Board. Those l proceedings are degenerating rapidly into a mockery of justice and an aff ront to every fundamental notion of due process of law.

Failure by the Commission to act decisively to prevent the further unraveling of these proceedings likely will invite a harsh judicial rebuke and further diminish the Commission's credibility with the public.

Of greatest and most immediate concern are Judge Hoyt's orders of December 23, 1986 and January 7, 1987, Judge Cotter's order of December 31, 1986 and the Commission's order of December 24, 1986. The net effect of these orders is: (1) the Commonwealth of Massachusetts and the other intervenors will have approximately one month to respond to the mammoth and technically complex petition to reduce the Seabrook emergency planning zone (EPZ) from l the regulatorily mandated ten miles to one mile, notwithstanding l

the f act that the utility has been planning and preparing the petition for years and received the active advice and assistance of NRC staff in that endeavor for the 16 months preceding its filing; (2) there will be no public hearing, much less an evidentiary hearing, on the petition at the ASLB level; (3) the l " prima facie showing" standard which the utility must meet if the ASLB is to certify the petition for waiver to the Commission has been transformed in a footnote f rom a well understood and very stringent test into a vague, ambiguous and almost meaningless notion that v-irtually guarantees certification of the issue to the Commission; and (4) several different and in some respects conflicting proceedings concerning offsite emergency planning at Seabrook will be going on concurrently rather than in an orderly progression.

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Tho Henortblo Londo W. Zcch, Jr. ',

January 13, 1987 Page 2 While these rulings are unf air and seriously flawed on their face, the background and nature of the utility's petition to waive the 10-mile EPZ requirement make these results absolutely intolerable. As you know, the Subcommittee on Energy Conservation and Power held a hearing on November 18, 1986 which focused on the then possible petition for waiver and in particular the role of the NRC staff in advising the utility for the previous 15 months on how to make the strongest case for waiver if the utility in f act decided to proceed with a petition. At the November 18 1

hearing, in which NRC officials participated,* and again in a Novembe r 20, 1986 letter to you, I raised most serious questions concerning the propriety of this coaching by the NRC staff and the allocation of financial resources being committed to this effort by the NRC before a petition for waiver had ever been filed. By letters of November 25, 1986 and December 2,1986 a majority of the Massachusetts Congressional Delegation and the entire New Hampshire Congressional Delegation advised the Commission of their '

opposition to any reduction in the size of the 10-mile EPZ.

Notwithstanding my concerns, which I do not believe you have taken sufficiently seriously based upon your December 8,1986 letter, NRC staff continued to work with the utility almost right up to the time the petition was filed. To absolutely nobody's surprise, the petition adhered f aithfully to the principal teaching that NRC staff had imparted: emphasize the uniqueness of Seabrook, especially its containment.

Having had the benefit of almost a year and one half of NRC staff input, including personal and substantial participation by Mr. Victor Stello, Executive Director for Operations, and the preliminary results of a $245,000 consulting contract with Brookhaven f unded by the NRC, Public Service of New Hampshire filed its petition for waiver of the 10-mile EPZ r equi rement. The ASLB has now given the Commonwealth of Massachusetts and the intervenors approximately one month to respond with no discovery and no public hearing. Such blatant unfairness would shock the conscience of any federal court reviewing NRC's actions in this, matter. The procedural nightmare created by these recent orders is even more egregious than that which prompted the federal court in New York to intercede into the Shoreham ASLB proceeding to grant the state and local governments and intervenors more time to prepare their case.

As you recall, I specifically telephoned you to insist upon Mr. Stello's appearance at the hearing and only excused him because of your representation to me that he had a serious f amily medical problem which precluded his t r av el .

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ThG H3narcble Lends W. Esch, Jr.

January 13, 1987 Page 3 Two aspects of Judge Hoyt's January 7,1987 order merit particular criticism. The order states that the ASLB's decision on whether the petition makes a crima f acie case for waiver of the 10-mile EPZ regulation will be based on " written pleadings. No oral hearings to supplement written responses are anticipated."

At the Subcommittee's November 18, 1986 hearing, the President of New Hampshire Yankee pledged to the Subcommittee that the utility would request a public hearing on the petition for waiver if such a petition were filed. The applicant's memorandum in support of the petition does make that request. The intervenors had requested full adjudicatory hearings on the petition. For the ASLB to deny even oral argument in light of the enormous importance of this issue to the ultimate question of whether or not Seabrook will receive a full power license is unf athomable.

In other contexts such as the Commission's proposed revisions to its Sunshine Act regulations, the Subcommittee Members have repeatedly warned the Commission about the perils of doing its -

business in secret. Having no public hearing of any kind at the ASLB level on an issue of this magnitude only reinforces the ever )

growing public distrust of the entire nuclear licensing process.

No less startlingly disturbing was Judge Hoyt's redefinition of the term "orima f acie showing" in a footnote on page 3 of her January 7, 1987 order. Citing absolutely no authority and rejecting another ASLB decision interpreting "orima f acie," Judge Hoyt redefines prima f acie "to mean evidence of a suf ficient nature that would cause reasonable minds to inquire further."

That is no standard at all, much less a burden of proof which must be met as a prerequisite to certification of the issue to the Commission. Almost any evidence of anything would "cause reasonable minds to inquire further." Indeed, most anthropologists consider the capacity for imaginative rational inquiry to be what distinguishes homo sapiens f rom other species of life. If the ASLB believes that to be the standard for judging the utility's petition, the ASLB should simply dispense with requiring any further response f rom anybody and immediately certify the issue to the Commission.

The phrase "orima f acie showing" or "orima f acie case" is a commonly understood jurisprudential standard carrying with it a heavy burden which the moving party (here, the utility) must meet.

Black's Law Dictionary defines "orima f acie case" as: "such as will suffice until contradicted and overcome by other evidence."

Normally, "orima f acie" is used in a legal context in which there has been no response yet to the position advocated by one party.

Here, however, the ASLB judgment of whether a prima facie showing has been made comes af ter all parties have made known their views.

Therefore, in this anomalous situation the phrase could be

Tho Honorable Lcnds W. zcch, Jr.

January 13, 1987 l Page 4 i reasonably construed to require an ASLB determination that there exists a substantial likelihood that the Commission will grant the waiver . Absent such a finding, the ASLB would be prohibited f rom certifying the petition to the Commission.

Permitting the ASLB to continue to make f arcical rulings which deny due process in the Seabrook proceedings, however, is not in the best interest of any of the parties or that of the Nuclear Regulatory Commission. The time is ripe for the Commission, in the exercise of its inherent supervisory authority, to undertake a management initiative which will restore some measure of f airness and credibility to these proceedings.

Accordingly, I request the Commission constitute a spcial Board to conduct all proceedings associated with the utility's petition to waive the 10-mile EPZ requirement for Seabrook. I also request that the Commission establish a f air and reasonable schedule for the orderly and f air conduct of these proceedings, including but not limited to providing for public hearings. In setting such a schedule, the Commission should considers (1) the burden on the parties of participating in concurrent, conflicting proceedings; (2) the need for discovery; and (3) the enormous importance of the petition to reduce the 10-mile emergency planning zone to the ultimate outcome of the Seabrook case and as a potential precedent with implications for emergency planning around every nuclear power f acility in the United States.

The issues raised here transcend Seabrook. Were the i commission to reduce the emergency planning zone on a site-specific basis, it would represent perhaps the most significant weakening of the NRC's regulatory regime since the

! accident at Three Mile Island. It would be especially ironic in light of the Chernobyl accident only eight short months ago where even today a zone of 18 miles around the plant remains evacuated.

It would open the door for every licensee in the country to demonstrate to the NRC why it too shouldn't be allowed a reduced emergency planning zone because of its unique qualities.

. If the Commission is to consider the petition at all, it must

assure itself that it will do so only on the basis of the fullest, most f airly developed record compiled by the ASLB, While it is too late to cure what I believe to be improper NRC staff activity prior to the utility's filing of the waiver petition, it is not too late to rectify the deteriorating situation at the ASLB. For the sake of the Commission's own credibility, I urge you to take the management actions described above.

I' The Honarcblo Lcnds W. Ecch, Jr.

January 13, 1987 Page 5 Please provide me with a response to this letter no later than close of business on January 20, 1987.

Sincerely, 1 /

Edward J. Markey Member of Congres Y

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