ML20207Q290
| ML20207Q290 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/20/1987 |
| From: | Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20207Q291 | List: |
| References | |
| CON-#187-2254 ALAB-853, OL-1, NUDOCS 8701270128 | |
| Download: ML20207Q290 (15) | |
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2 k% 2T'l January 20, 1987 ,
00CMETED UNITED STATES NUCLEAR REGULATORY COMMISSION USh"C BEFORE THE COMMISSION
'87 JAN 21 P1 :58" l
) ut, In the Matter of )
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Public Service Company of )
New Hampshire, et al. ) Docket Nos. 50-443 OL-1
) 50-444 OL-1 (Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY
) PLANNING & TECHNICAL
_____________________________________) ISSUES NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S BRIEF IN SUPPORT OF ATTORNEY GENERAL OF MASSACHUSETTS' APPEAL OF ALAB-853
! Introduction The New England Coalition on Nuclear Pollution ("NECNP")
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! supports the Attorney General of Massachusetts' appeal of ALAB-853, in which the Appeal Board ruled that compliance with 10 CFR l 8 50.33(g), which requires operating license applicants to submit
" state and local government" emergency plans for the entire emer-l gency planning zone, is not a prerequisite for issuance of a zero power license. NECNP did not participate in the appeal of the zero power license. However, NECNP opposed Applicants' motion l
for authorization to operate Seabrook at low power. If '
Applicants' motion is granted. NECNP intends to appeal the low power license on the ground that a license to operate at any
- level of power may not be issued without full findings of com- l l l l
pliance with Nuclear Regulatory Commission ("NRC" or "Commis-l sion") regulations. Accordingly, NECNP files this brief because l
the Appeal Board's decision regarding the legality of the Licens-8701270128 870120 PDR ADOCK 05000443
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ing Board's issuance of an operating license allowing fuel load- 4:
ing and precriticality testing at Seabrook raises issues that bear directly on the legality of Applicants' pending motion for a low power license, and NECNP's opposition-thereto.
I. ALAB-853 Cor.flicts With the Requirements of the Atomic
. Energy Act and With Congress' Expressed Intent Regarding Nuclear Power Plant Licensing.
At the heart of the Appeal Board's decision is the principle that the NRC may issue a licens'e authorizing partial operation of a nuclear power plant without completing the findings of regulatory compliance that are necessary for full power opera-tion. The Appeal Board finds support in 10 C.F.R. 9 50.47(d) for the Licensing Board's decision to excuse Applicants from com-pliance with 10 C.F.R. 9 50.33(g) at the zero power licensing stage. As demonstrated in NECNP's opposition to Applicants' motion for authorization to operate Seabrook at low power levels, the Appeal Board's conclusion is refuted by the Atomic Energy Act and its legislative history. Where an operating license applicant seeks a license authorizing zero power or low power operation, the Atomic Energy Act permits neither the case-by-case exemption from allegedly unnecessary regulatory requirements nor the promulgation of a standard that would suspend the requirement for approval of the adequacy of offsite emergency planning. Con-gress has made it clear that no operating license may issue unless and until the Commission completes prior hearings on all issues that are relevant to full power operation.
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In order that the Commission may fully consider the conflict kk between ALAB-853 and the Atomic Energy Act, we have) attached to the Commissioners' briefs 1 copies of "New England Coalition on i
.'!uc lea r Poll ut ion 's Opposition to Applicants' Motion for Issuance of a Partial Initial Decision Authorizing Low Power Operation,"
dated July 2, 1986. NECNP hereby adopts and incorporates i.h a t pleading by reference.
II. ALAB-853's Holding that Applicants for Zero Power Licenses Need Not Comply with 10 C.F.R. 9 50.33(g) Renders That Regulation A Nullity.
Assuming for purposes of argument that the Commission has 1
the authority to exempt operating license applicants from com-pliance with certain regulations for purposes of zero power or low power authorization, such exemptions must be expressly stated in Commission regulations. The only express exemption relevant to zero and low power operation is 10 C.F.R. 9 50.47(d), which permits operation up to 5% power prior to FEMA or NRC approval of offsite preparedness.2 There is no regulation expressly exempt-ing zero and low power license from 10 C.F.H. 9 50.33(g)'s requirement that emergency preparedness plans be sebmitted. Non-l l
l 1 Parties to this proceeding are directed to the record for copies of this pleading.
2 NECNP continues to assert that the exemption contained in 10 C.F.R. 9 50.47(d) violates the Atomic Energy Act's mandate that Applicants' comply with all licensing regulations prior to being issued either a full, low, or zero power license.
See Part I, above, and attached brief.
_ 4-etheless, Applicants have attempted to argue that 10 C.F.R. 9 u\
50.47(d) should be read inferentially to e x e n,p t zero and low power licenses from the requirement contained in 10 C.F.R. 9 50.33(g) that state and local government emergency plans must be submitted by Applicants. The first response to this proposition is, of course, that the language of 9 50.47(d)'s exemption is unambiguous and clear: it exempts applicants for low or zero power licenses only from "the standards in paragraph (b) of this section," i.e. that there be NRC or FEMA review, findings or determinations concerning the state of offsite emergency preparedness. Nowhere does 9 50.47(d) state that applications for low or zero power operation are also exempted from the com-pletely separate licensing requirement of 9 50.33(g), i.e., that Applicants must at least submit state and local government emor-gency plans. To expand 9 50.47(d)'s exemption in this manner conflicts with the basic prinpiple that exemptions should, wherever possible, be construed narrowly.
More importantly, the Appeal Board's and the Applicants' reading of 9 50.47(d), in effect, renders 10 C.F.R. 9 50.33(g) a nullity. This is because compliance with 10 C.F.R. 9 50.33(g) is only relevant in the context of applications for licenses to operate at 5% or less of rated power. In the case of licenses to operate at full power, compliance with 10 C.F.R. B 50.33(g) can-not be at issue, since 9 50.33(g)'s requirement that plans be submitted is clearly subsumed in 10 C.F.E. 9 50.47(b)'s require-
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4 ment that " review, findings or determinations" be made concerning Ch the adequacy of offsite emergency response plans. Obviously, no such review, findings, or determinations can be made until such plans are submitted. Thus, 10 C.F.R. M 50.33(g) only becomes retuvant in the context of licenses for less than 5% rated power, which are, by Commission regulation, exempt from the requirements of 10 C.F.R. 9 50.47(b). If, as Applicants contend, 9 50.33(g) is not applicable to low or zero power licenses, then 9 50.33(g) is nothing more than a superfluity. It is a well-settled princi-ple that where there are two regulations upon the same subject, ;
they should be considered in pari material so as to give effect to both. Daigneault v. public Finance corp. of Rhode Island, 562 F.Supp. 194 (D.R.I. 198h). The only reading that gives effect to both 9 50.33(g) and 9 50.47(d) is that 8 50.33(g) was intended to be a separate and independent requirement specifically applicable in the context of licenses for up to 5% rated power.
Both the Applicants and the Appeal Board nonetheless attempt to argue that 10 CFR 4 50.57(c; establisnes a different standard for low and zero power licenses in that it exempts such applica-tions from 10 C.F.R. 9 50.33(g). However, regulation 50.57(c) merely provides that, in the context of applications for zero and low power licenses, the licensing board must give "due regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized" 10 C.F.R. 9 50.57(c)
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h (emphasis added). This language must be read as re-stating the ck rights of parties to the proceeding, not as limiting them. Thus, the only legitimate reading of this regulation is that, in the case of less than full power licenses, a contention regarding the luck of NHC or FEMA review, findings, or determinations would not be relevant due to 9 50.47(d)'s exemption, and therefore any such contentions alleging the lack of NRC or FEMA findings on the ade-quacy of offsite emergency preparedness need not lue considered.
However, nowhere is there any regulatory or other basis to assume that compliance with section 50.33(g) is not relevant to applica-tions for less than 5% power.
The requirement that state and local government plans he at least submitted is an entirely appropriate and rational threshold for consideration of a zero or low power license, considering that such a license authorizes irreversible consequences: namely the radioactive contaminations of the facility. Moreover, zero and low power licenses have no utility nor any benefit indepen-dent of a fuel power license. They are granted to permit the testing necessary to make full power operation possible. The commission rationally determined that (indeed, we would argue was compelled to determine) in circumstances where an applicant lacked an element so fundamental to full power licensing as the exigtence of an emergency plan covering the entire EPZ, no con-
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sideration would be given to zero or low power-licensing.3 As was noted above, any other reading would render M 50.33(g) a nul-lity. Thus, the only reading of 9 50.33(g) that reconciles and gives effect to all thr<se regulatory provisions -- 4% 50.33(g),
50.47(d), and 50.57(c) -- is-that Applicants for low and zero power licenses must either comply with 9 50.33(g) or follow required channels for petitioning for a regulatory waiver under 10 C.F.R. 9 2.758(b).
III. ALAB-853 Illegally Shifts the Burden of Proof From Applicants to Intervenors.
The Appeal Board's interpretation of 10 C.F.H. 9 50.57(c) in effect, illegally grants the agency uncontrolled discretion in exempting Applicants from mandatory licensing requirements on an ad hoc basis. Instead of requiring Applicants to demonstrate why compliance with a mandatory licensing regulation would not serve the purpose underlying the regulation, as called for by 10 C.F.R. 9 2.758(b), the Appeal Board has instead required Intervenors to prove that compliance with the regulations is relevant to the low power license application. This approach unlawfully shifts the 3 In their brief to the Appeal Board, Applicants attempt to min-inize the signficance of compliance with 9 50.33(g) by stating that compliance could be achieved merely by filing a one-sheet document stating "in case of emergency the applicants will send a rider to the State House in Boston." Applicants brief, at 10. Applicants were apparently being facetious; obviously. Applicants have an obligation to submit emergency preparedness plans in good faith.
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burden of proof from Applicants to Intervenors.4 Thus, those who
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are ostensibly protected by the Commission's body of regulations are placed in the absurd position of having to prove that com-pliance with those regulations is necessary to protect their health and safety.5 Massachusetts' failure to make such a show-ing appears to have been a consideration in the Appeal Board's decision. See ALAB-853, slip op. at 4.
This approach not only viol'ates the principle that the util-ity applicant bears the burden of justifying its entitlement to an operating license, but it stands the Commission's entire regulatory scheme on its head. NRC regulations establish a presumption that licensing regulations are valid for all nuclear power plants and may not be relitigated or challenged in each operating license case. 10 C.F.R % 2.758(a). Exemption is permissible only where Applicants can demonstrate special circum-stances with respect to the subject matter of the proceeding such that application of the regulation would not serve the purposes 4 An operating license applicant has the ultimate burden of proof in demonstrating entitlement to a license. 10 C.F.R. 6 2.732; Virginia Electric & Power Co. (North Anna Power Sta-tion, Units 1,2,3,4), 1 NRC 10, 17 n.18 (1975).
5 Intervenors are even required to guess which regulations may have been waived in a license for partial operation. The zero power license issued to Applicants on October 17, 1986, for instance, contains a finding of compliance with Commission regulations. It contains no mention of 9 50.33(g) or any other regulation that may have been ignored because it was not considered " relevant" to that particular license.
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for which it was. adopted. 10 C.F.R. 9 2.758(b). Applicants have r not petitioned for a waiver of 10 C.F.R. 9 50.33(g), nor have they even attempted to meet their heavy burden of proof of show-ing that such special circumstances exist. The Appeal Board's interpretation of 10 C.F.R. 9 50.57(c) would establish a presump-l tion that no regulation is relevant to low power operation unless j l
an intervenor shows that compliance is necessary. Clearly, the l presumption of the vallidity an'd general _ applicability of all regulations that is embodied in 10 C.F.P. 9 2.758(a) must prevail.
Moreover, the case-by-case determination of what issues are relevant to zero power or low power operation violates the prin-ciples of regulatory consistency that are embodied in 10 CFR H 2.758. There is only one provision in the NRC's regulations which generically excuses compliance with a particular regulation during low power operation, and that is 10 C.F.R. 9 50.47(d).
Nowhere else in the regulations does the Commission state which regulations must be satisfied for low power operation and which regulations may be waived. Apparently the Commission intends that in each licensing case, "{e]ach regulation must be examined to determine its application and effect for fuel loading and for each phase of low power operation." Long Island Lighting Co.
l (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC 1437, 1440 (1984) This ad hoc approach is an extraordinarily ineffi-cient and inconsistent means of making generic regulatory deci-
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sions. Moreover, it violates the long-standing principle of
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administrative law that when an agency has promulgated general rules, it may not permit departure from these rules without a strong showing that the party seeking different treatment is in fact in a materially and substantially different situation from those considered when the rule was promulgated. See Industrial Broadcasting Co. v. FCC, 437 F.2d 680, 683 (D.C. Cir., 1970);
Safety-Kleen Corp. v. Dresser Industries, 518 F.2d 1399, 1403 CU.S. Ct. of Cust. and Pat. App, 1975).
In effect, the interpretation of 10 C.F.R. 9 50.57(c) used by the Appeal Board constitutes a wholesale waiver procedure allowing the case-by-case determination of which of the NRC's substantive rules may be waived for low or zero power operation.
Not only are applicants not called up on to make the "special circumstances" showing required by law, the rule has been applied in such a way as to relieve them of the burden of proof. The result is that neither the public nor applicants are given any meaningful notice of what licensing requirements are to be imposed for any stage of operation short of full power operation.
Just as NECNP would be required to meet the stringent requirements of 10 C.F.R. B 2.758 if it believed that that com-pliance with a given regulation was inadequate to protect the public health and safety at Seabrook, so Applicants must be required to meet the same standard if they believe that com-pliance with a particular standard is not required for low power
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operation. Otherwise, if the Commission wishes to exempt Applicants from such compliance, it must conduct a rulemaking and consider public comment as to whether compliance with 10 CFR S 50.33(g) should be required as a prerequisite to zero power or low power operntion.
IV. Sound Policy Reasons Support the Enforcement of 10 CFR 9 50.33(g) As A Requirement for Issuance of an Operating License Authorizing Pre-Criticality Testing and Low-Power Operation. ,
4 In ALAB-853, the Appeal Board found that no discernible pub-lic interest objective would be served by requiring the submis-ston of state or local emergency plans as a condition of fuel loading or precriticality testing. To the contrary, if any case ever called for the submittal of emergency plans before testing could begin, this is it. At this point, no offsite emergency plans have been submitted for the Massachusetts sector of the emergency planning zone, which constitutes virtually one-third of the EPZ. To compensate, Applicants have made a desperate bid to reduce the size of the emergency planning zone from ten to one mile. Applicants' waiver petition, which makes an unprecedented and reactionary attack on accepted principles of emergency plan-ning, is based on a proposition that was specifically rejected in ,
the post-TMI emergency planning rulemaking, to wit: that reliance on engineered safety features can substitute for emer-gency preparedness. The Applicants' exemption petition con-stitutes a clear effort to re-argue an issue specifically decided in that rulemaking proceeding.
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- Given these circumstances, the Applicants face at the very \
least a protracted, highly controversial and vigorously disputed proceeding since they seek to be treated differently from all other nuclear plants. There is no reasonable prospect vi this plant betng authorized to go to full power in the near future.
One need not speculate about the chances of this plants ever receiving a full power-license to conclude that zero or low power operation would entail costs nn'd risks without any countervailing benefits. The policy that all fundamental elements of emergency planning be at least in existence prior to operation at any level should not be disregarded in this case, above all cases.
Respect ully submitted.
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Diane Curran Andrea Ferster HARMON & WEISS 2001 "S" Street N.W.
Suite 430 Washington, D.C. 20009 January 20, 1987
4 CERTIFICATE OF SERVICE ggg UMc I certify that on January 20, 1987, copies of NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S BRIEF IN SUPPORT OF ATTORNEY * 'i GENERAL OF MASSACHUSETTS' APPEAL OF ALAB-653 were sere @d 49 21 P1 :58 3 first-class mail on all parties not designated by an asterisk.
Counsel for Applicants were served that day by Federa Express.
The Commissioners and counsel for the NRC Staff were p}erved, F on January 21, 1987, by hand. DR A E o
, 3 Helen F. Hoyt, Chairman Rep. Roberta C. Pevear Atomic Safety and Licensing Board Drinkwater Road U.S. Nuclear Regulatory Commission Hampton, Falls , NH 03844 Washington, D.C. 20555 Dr. Jerry Ha rbour Phillip Ah rens, Esq.
Assistant Attorney General Atomic Sa fety and Licensing Board State House, Station # 6 U.S. Nuclear Regulatory Commission Augusta, ME 04333 Washington, D.C. 20555
- Thomas G. Dignan, Es q .
Dr. Emmeth A. Lu ebk e R.K. Gad II, Esq.
Atomic Safety and Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, D.C. 20555 Boston, MA 02110 Atomic Safety and Licensing Board Robert A. Ba ck u s , Esq.
Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 111 Lowell Street Washington, D. C. 20555 Manchester, NH 03105 Atomic Safety and Licensing Appeal
- Robert G. Perlis, Esq.
Board Panel Sherwin E. Tu r k , Es q .
U.S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D. C . 20555 Director Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Angie Machiros , Chairman Roard of Selectmen Mrs. Anne E. Goodman Newbury, MA 01950 Board of Selectmen l 13-15 New Market Road H. Joseph Flynn, Es q.
Durham, NH 03842 Of fice of General Counsel 1 William S. Lo rd, Selectman Federal Emergency Management Agency 500 C Street S.W.
Town Hall -- Friend Street Wa shington, D.C. 20472 Amesbury, MA 01913 George Dana Bisbee, Es q .
Jane Doughty Stephen E. Merrill, Esq.
SAPL Of fice of the Attorney General 5 Market Street State House Annex Portsmouth, NH 03801 Concord, NH 03301 Ca rol S . Sneider, Esquire Allen Lampert
J 2-Assistant Attorney General Civil Defense Director ..
Department of the Attorney General Town of Brentowood ~\
1 Ashburton Place, 19th Floor Exeter, NH 03833 Boston, MA 02108 l Richard A. Hampe, Esq.
Stanley W. Knowles Hampe and McNicholas Board of Selectmen 35 Pleasant Street P.O. Box 710 Concord, NH 03301 North Hampton, NH 03826 Gary W. Holmes, Esq.
J.P. Nadeau, Selectman Holmes & Ellis Town of Rye 47 Winnacunnent Road 155 Washington Road Hampton, NH 03842 Rye, New Hampshire 03870 William Armstrong Richard E. Sullivan, Mayor Civil Defense Director City Hall 10 Front Street Newburyport, MA 01950 Exeter, NH 03833 Alfred V. Sargent, Chairman Calvin A . Canney Board of Selectmen Ci ty Manager Town of Salisbury, MA 01950 City Hall 126 Daniel Street Senator Gordon J. Humphrey Portsmouth, NH 03801 U.S. Senate hashington, D.C. 20510 Matthew T. Br ock , Esq.
(Attn. Tom Burack) Shaines & McEachern P.O. Bo x 3 60 Selectmen of Northampton Maplewood Ave.
Northampton, New Hampshire 03826 Portsmouth, NH 03801 Senator Gordon J. Humphrey Edward A. Th omas 1 Pillsbury Street Federal Emergency Management Concord, NH 03301 Agency 442 J.W. McCormack (POCH)
Town of South Hampton Boston, MA 02109 P.O. Box 10 East Kingston, NH 03827 Sandra Gavutis Town of Kensington
- Lando W. Zech, Jr., Chairman RFD 1 Box 1154 U.S. Nuclear Regulatory Commission East Kensington, NH 03827 Washington, D.C. 20555 Howard A. Wilber
- Thomas M. Ro be r ts Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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- James K. Asselstine NECNP U.S. Nuclear Regulatory Commission Bo x 5 4 5 -
Washington, D.C. 20555 Brattleboro, VT 05301
- Frederick M. Be r nthal Alan S . Ro s en thal, Ch airman U.S. Nuclear Regulatory Commission Atomic Sa fety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commission
- Kenneth M. Ca r r Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gary J. Edles Atomic Sa fety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Diane Curran
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