ML20207Q270
| ML20207Q270 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/20/1987 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2253 ALAB-853, OL, NUDOCS 8701270105 | |
| Download: ML20207Q270 (11) | |
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b DOLVETED UNITED STATES OF AMERICA UNC NUCLEAR REGULATORY COMMISSION
'87 Jm 21 P153 Before the Commissioners In the Matter of PUBLIC SERVICE COMPANY OF Docket Nos.
NEW llAMPSillRE, ET AL 50-443-OL (Seabrook Station, Units 1 and 2)
January 20, 1987 BRIEF OF SEACOAST ANTI-POLLUTION LEAGUE l
IN SUPPORT OF REVERSAL OF ALAB-853 1
NOW COMES the Seacoast Anti-Pollution League (hereinafter "SAPL") and files its Brief, pursuant to the briefing schedule established in the Commission's Order of January 9,
- 1987, and advocates that the Commission reverse the Appeal Board decision in ALAB-853 which denied the appeal of the Attorney General of Massachusetts.
SAPL had joined in that appeal.
i STATEMENT OF PROCEEDINGS Applicants in this proceeding filed a motion on August 22, 1986 pursuant to 10 CFR 050.57(c) for authorization for a lleense to l
i conduct fuel loading and procriticality testing at the Seabrook l
reactor.
SAPL filed a motion opposing the Applicants' motion on i
August 29, 1986.
Attorney General Francis X.
Bellotti f11ed his
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l obj ect ion on behal f of the Commonwealth of Massachuset ts on September 3, 1986, citing, Inter alla, the Applicants' failure to comply with C00 8701270105 870120 PDR ADOCK 05000443 O
PDR L
the requirement of 10 CFR Q50.33(g) that radiological emergency response plans of all state and local governments within the Seabrook EPZ be submitted as part of the 1Icense applfeatlon.
On October 7,1987, the Licensing Board, over these obj ect ions, granted the Applicants' motion.
See LDP-86-34, 24 NRC The Commonwealth of Massachusetts filed a stay request and appeal on October 16, 1986 and SAPL filed its joinder in the Commonwealth's appeal on October 21, 1986.1 On November 20, 1986, the Appeal Board denied the Attorney General's appeal.
The Commonwealth of Massachusetts petitioned this Commission to take review of the Appeal Doard's order on December 5, 1986.
By Order of January 9,
- 1987, l
this Commission undertook sua sponte a review of ALAB-853 and established a schedule for briefing, pursuant to which this Brief 1
is filed.
ARGUMENT A)
The Appeal Board Erred in Denying the At torney General's Appeal Since the Language of Section 50.33(g) is Clear and Applicants llave Not Complied Wi th its Plain and Mandatory llequirements 1.
In its appeal brief filed on October 29, 1986, SAPL raised three addit ional argument s in addi t ion to tha t raised by the Commonweal th.
The Appeal Doard ruled against SAPL on these additional arguments and affirmed the Licensing Doard's deelslon on December 8,
1986.
See ALAD-854.
We do nnt understand the Commission has determined to renew those arguments.
. 2 --
Section 50.33(g) o f t he Commi s s i on 's regulations, which l
sets out the application requirements for an operating license for a nuclear power reactor, requires as follows:
...The Applicant shall submit radiological emergency response plans of State and local governmental entitles' t
i in the United States that are wholly or partially within i
the plume exposure pathway Emergency Planning Zone (EPZ),
i as well as the plans of state governments wholly or
]
partlally wlthin the ingestlon pathway EPZ.
10 CFR 950.33(g) i I
j lt is an accepted rule of statutory construction that the word i
"shall" acts as a command.
Nelson v. W.
Virginia Public Employers i
i Ins. Bd., (W.Va. ) 300.SE 2nd 86, 34 ALR 4 th 438.
Regulations of the j
Commission are subject to the same standards of interpretatlon as i
are statutes.
Therefore, a literal reading of 10 CFR 650.33(g)
{
yleids the understanding that the requirement that radiological emergency response plans of state and local governments be submit ted r
is a mandatory and not an elective matter.
Further, the agency must of necessity make findings in accord with its own regulations.
Service v. Dulles, 354 US 363, 77 S.Ct. 1152, L.Ed. 2nd 1403: Nader i
- v. NRC, 168 U.S. App. D. C.
255, 261; $13 F.2d 1045, 1051 (1975)..
The Commission made clear in its " Description of Final Rule j
Changes" in its action on the final rule on emergency planning requirements that plan submission is mandatory.
It stated, "In order to continue operations or to receive an operating license, an
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j oppliennt/lleensco will be required to submit its emergency plans, as well as State and local governmental emergency response plans, to NRC."
45 Fed. Reg. 55402, at $5403, Cols. 1-2 (August 19, 1980).
l I i
1
Additionally, the only NRC deelslon which construes 150.33(g) does not contradlet the mandatory nature of the regulation.
The Shoreham Licensing Board stated:
(A]n interpretation (requiring the filing of local governmental offsite emergency plans only if such plans exist] would be contrary to the plain meaning of Section 50.33(g) and in conflict with the overall regulatory scheme of 10 CFR Part 50, which generally sets forth mandatory requirements for the issuance of a cons t ruction permit or an operat Ing ileonse.
Indeed, sect Ion 50.33 is entitled
' contents of applications; general Information;'
and begins with the general preamble
'Each application shall state:'
[ Emphasis added.]
Long Island I,lghting Co. (Shoreham Nuclear Power Station, Unit i
1, LUP-83-22, 17NRC 608, 620 (1983).
Though the Shoreham Licensing Board held that 650.33(g) does not require termination of Ilconsing proceedings absent submission of a local government plan if a utility of f site plan has been submit ted to compensate for its lack, the deelslon did not authorize the issuance of an operating license when there are no offsite plans.
No offsite plans have yet been submitted for the Commonwealth of Massachuset ts as part of the Applicants' app!! cation for an operating license in clear cont radict ion of 650.33(g).
Furthermore, I
no state govermont plans for those states partially within the ingestion pathway EPZ have been submitted except that for the State of New Ilampshi re.
The 650.33(g) requirements clearly require that the ingestion pathway emergency response plans ought be submitted for both the Commonwealth of Massachusetts and the State of Maine in addition to the State of New llampshire in order to have the license application be complete.
(The 50 mile ingestion exposure zone includes large areas in both Maine and Massachusetts.) !
i
D)
The Appeal Board Erred In Finding That An Operating License Application is a "Living, Breathing" Document Subject to Change at Least Until Full-Power Operation is Authorized Nowhere in the Commission's regulations is there any reference to an operat ing license applicat lon as a "living, breathing" document.
The Applicants have fabricated this line of argument out of whole cloth and the Appeal Board has adopted it without apparent justifIcatlon.
The Appeal Board did note that portlons of an application "are frequently tendered well after the adjudicatory proceeding on that application has begun."
llowever, that fact does not in any way demonstrate that final licensing determinations should be made before the lleense application is made complete pursuant to QS0.33(g) requirements.
The Appen! Board's observation serves in no way to resolve the instant dispute.
Although the license may well be amended durIng licensing review, and even af ter adjudicatory hearings have been started, this certainly cannot j us t i f y licensing when an ent ire independent safety feature, emergency planning, required to be part of the application, has not even been tendered.
10 CFil 6 5 0. 5 7 (a )(1 ) and ( 2 ) require that before a license can be issued that the Commission must find that facility has been constructed and will operate in conformity with "the application as amended..."
The license cannot issue when the applicat ion is totally lacking as to an independent, mandatory aspect concerning nuclear safety.
5-
c)
The Appeal Board Erred in Finding That the Commission's Regulations Do Distinguish Between Types of Operating Licenses with Respect to the 650.33(g) Requirement For Submission of Emergency Plans Though the Appeal Board does acknowledge that 650.33(g) does l
not distinguish between full-power licenses and licenses for operations at less than full power, the Appeal Board then goes on to argue that since 150.57(c) and 50.47(d) do make distinctions between the considerations that are relevant for authorization for l
low-power as opposed to full power operatlon, 650.33(g) cannot 1
possibly be construed literally.
The Appeal Board does not find that submission of plans was intended as a preregulsite to licensing because the Commission has determined that for operation up to 5%
of rated power no review, findings or determinations regarding the state of offsite emergency preparedness need be made.
Ilowever, a clear dis t inction can be drawn between the requirement i
for plan submission and the requirement of findings as to the adequacy of plans.
The lack of a requirement for the latter action does not necessarily obviate the requirement for the former.
Indeed, the requirement for the submission of plans before any level of operation is logleal when one considers that issuance of a full power license cannot at all be reasonably anticipated unless such plans are in existence, and that, without the likelihood of a full power license to follow, fuel loading and low power operatlon make absolutely no i
sense. Fuel loading and low power licensing serve only to contaminate the facility and elevate the level of risk to power plant workers 1
co'u ter-balancing public and perhaps the general public with no benefit.
Therefore, taken in isolat ion, these actions are insupportable.
The 650.33(g) requirement serves to es tabil'sh a linkage between those
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actions and the action of submission of of fsite plans, a prerequisite for full power operatlon.
This helps to ensure tNat the alleged benefit of full power operation will have a greater likelihood of following upon the prfor allowed actlons.
Further supporting the argument that $50.33(g) means what it says is the well established principle that, in the. case of seeming confilet in the provisions of a statute, the construction should be such that both provisions may stand.
U.S.
- v. Moore, 95 US 760, 24 1.Ed. (1877).
The regulatlons of an agency which control the same activity ought also be construed such that both may stand. The logic propounded by the Commonwealth of Massachusetts in its appeal achieves this result in drawing the clear distinction between submission of plans and review or findings concerning the adequacy of plans.
The Appeal Board's construction, on the other hand, strains the clear meaning of $50.33(g) such that it does not stand alone and is indeed cont radicted by 650.47(d) and $50.57(c).
Indeed, the Appeal Doard's decision actually operates to nullify an important portion of l
650.33(g) as it which it could, and should, have given effect.
The Appeal Hoard wasnot at liberty to nullify the plain language of a Commission regulation.
D)
The Appeal Board Erred in Finding Thnt No Discernible Public Interes t Obj ect ive Would Be Served Dy llequiring The Submission.
of State or Local Emergency Plans As a Condition of Any Level of Operation The notlee of proposed rulemaking for the rule change that amended $50.47 to establish that NRC and FEMA review findings and determinations concerning the adequacy of offsite preparedness are no longer required for fuel loading and operation up to 5% power makes clear that it was anticipated that planning would be in progress and that certain offsite elements would need to be reviewed.
46 Fed. Reg. 61132, at 61133, Col. 1 (December 15, 1981).
This is consistent with the interpretation that 650.33(g), as it clearly
- states, requires submission of plans.
The notice of proposed rulemaking stated:
...the NRC review of the lleensees' onsite response mechanism will necessarily include aspects of some of f site elements:
Communications; notifications; assistance agreements with local law enforcement, fire protection, and medical organizations; and the like.
46 Fed. Reg. 61132 (supra)
Such a review would, as a prerequisite require that offsite plans would have been submitted to NRC to be available for a look at those elements. The argument that Applicants could simply remedy the defect in compilance with 650.33(g) by filing s o.nc cursory document purpor t Ing to be an of f site plan does not withs tand analysis.
It follows f rom the foregoing statement about NRC review of certain offsite elements that those elements were to meet certain minimal or good faith standards.
Indeed, the Commission cites certain of the offsite review standards of its own regulations in describing that reviews - -
\\
i
.M Scma excmplos, but not an exclusive list, thero review of an applicant's emergency plan would involve aspects of some offsite elements may be found in pertinent portions of 10 CFR 50.47(b)(3),(5),(6),(9) and (12).
1$-
Additionally, the proposed rule stated that FEMA concurred in the proposed rule change because of FEMA's observations concerning the level of planning and preparedness activities at the state and local level.
FEMA concurs in this approach and in the proposed rule as a result of reviewing the level of general planning and preparedness act ivities that are taking place in the State and local jurisdictions where nuclear power plants are expected to be licensed.
46 Fed. Reg. 61132, at 61133, Col. 2 (December 15, 1981).
Again, this is consistent with the view that offsite plans would both be in existence and have been submit ted.
SAPL argued on appeal that "the existence of a plan does provide some additional margin of safety even though it may not have been reviewed."
App. Tr. 28.
This is apparently the precise logic FEMA employed in deciding to concur with the amendm'ent to 050.47, but this logic was categorically rejected by the Appeal Board.
The regulation in question, 050.33(g), does serve the public interest in providing some of fsite planning ef fort prior to licensing, even if the FEMA or NRC review of that effort can, under $50.47(d) be def erred. 2 Wherefore, SAPL urges that the Commission reverse the denial of the Commonwealth's appeal and rule that the application for a 2.
SAPL, in accepting the provisions of 050.47(d), as it must, does not, in citing the regulation, concur that its underlying premises are correct.,
r I
plans which provide for emergency response for both the plume exposure and ingestion exposure EPZ's for all states wholly or partially within those EPZ's.
Th e Commi s s i on ought restate the clear and obvious meaning of $50.33(g) and demons trate that s trict cons truct ion of the Commissicn's regulations is to be held to apply not only to interested states and municipalities and to intervenors, but also
-in even-handed fashion-to Applicants.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By its attorney, BACKUS, MEYER & SOLOMON
,,l,s lge Robeit A. ' Ba c k u s P. O.
Box 516 116 Lowell Street Manchester, N.H.
03105 Tel: (603) 668-7272 DATE:
January 20, 1987 I hereby certify that a copy of the within Brief of Seacoast Anti-Pollution League In Support of Reversal of ALAB-853 has been sent this date, first class, postage prepaid, to those listed on the attached service list and federal expressed to those part ies denoted with an asterisk.
//
/s
,Atober-t A.
Backus l
..._...____u,..._
CERTIFICATE OF SERVICE AND SERVICE LIST Joseph Flynn, Asst.Gn.Cnsl Lando W. Zech, Jr., Chrmn*
Thomas Dignan, Esq.*
Fed. Emerg. Mgmt. Agcy.
U.S. NRC Ropes & Gray 500 C St. So. West Washington, D.C.
20555 225 Franklin St.
Waehington, D.C.
20472 Boston, MA 02110 k
Office of Selectmen Thomas M. Roberts
- Docketing & Serv. Sec.*
1 Town of Hampton Falls U.S. NRC Office of the Secretary Hampton Falls, N.H.
03844 Washington, D.C.
20555 Wa [11 ton, D.C.
20555 Sherwin E. Turk, Esq.*
James K. Asselstine "9
Office of Exec. Legl. Dr.
U.S. NRC 5 Market Strent U.S. NRC Washington, D.C.
20555 Washington, D.C.
20555 Portsmouth, N H.
03801 Maynard Young, Chaiman Phillip Ahrens, Esq.
Frederick M. Bernthal 0"'
Asst. Atty. General U.S. NRC F
10 Central Road L_
State House Sta. #6 Washington, D.C.
20555 Augusta, ME 04333 Rye, N.H.
03870
=
Ge rge Dana Bisbee, Esq.
Carol Sneider, Esq.
Kenneth M. Carr Attorney General s Off.
Office of the Atty. Gen.
U.S. NRC One Ashburton Place 19 Fl.
Washington, D.C.
20555 State of New Hampshire Boston, MA 02108 Concord, N.H.
03301 Richard A. PMpe, Esq.
Paul McEachern, Esq.
William S. Lord New Hampshire Civil Def.
Matthew Brock, Esq.
Board of Selectmen Hampe & McNicholas 25 Maplewood Ave.
Town Hall - Friend St.
35 Pleasant St.
P.O.
Box 360 Amesbury, MA 01913 Concord, N.H.
03301 Portsmouth, N.H.
03801 Rep. Roberta Pevear Diane Curran, Esq.
Sandra Gavutis am n & Weiss Town of Hampton Falls Town of Kensington Drinkwater Road 20001 S Street, NW
- 430 Box 1154 Washington, D.C.
20009 Hampton Falls, N.H.
03844 East Kingston, N.H.
0382)
Edward Thomas Mr. Robert Harrison FEMA Pres. & CEO 442 J.W. McCormack (POCH)
PSNH Boston, MA 02109 P.O. Box 330 Manchester, N.H.
03105
- Federal Expressed
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