ML20209E821

NRC Staff Response to Motions Filed by Seacoast Anti- Pollution League,New England Coalition on Nuclear Pollution, Town of Hampton & Massachusetts Atty General Seeking Stay of Licensing Board....* Certificate of Svc Encl

ML20209E821
Person / Time
Site:	Seabrook
Issue date:	04/20/1987
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#287-3250 OL-1, NUDOCS 8704300129
Download: ML20209E821 (24)

Text

3 2. 5d 00CKETED USNRC UNITED STATES OF AMERICA 2 57 NUCLEAR REGULATORY COMMISSION '87 EN 20

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• BEFORE THE ATOMIC SAFETY AND LICENSING APPEh'L' ~ BOARD -

In the Matter of )

) Docket Nos. 50-443 OL-1 PUBLIC SERVICE COMPANY OF ) 50-444 OL-1 NEW HAT 1PSHIRE, et al. ) Onsite Emergency Planning

) and Safety Issues (Seabrook Station, Units 1 and 2) )

NRC STAFF'S RESPONSE TO MOTIONS FILED BY SAPL, NECNP, TOWN OF IIAMPTON, c ND THE MASSACHUSETTS ATTORNEY GENERAL SEEKIhG A STAY OF THE LICENSING BOARD'S PARTIAL INITIAL DECISION AUTHORIZINO ISSUANCE OF A LOW POWER LICENSE f Sherwin E. Turk Senior Supervisory Trial Attorney April 20,1987 l

8704300129 870420 i

PDR ADOCK 05000443 G PDR 1  !

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l In the Matter of )

) Docket Nos. 50-443 OL-1 PUBLIC SERVICE COMPANY OF ) 50-444 OL-1 NEW HAMPSHIRE, et al. ) Onsite Emergency Planning

) and Safety Issues (Seabrook Station, Units 1 and 2) )

NBC STAFF'S RESPONSE TO MOTIONS FILED BY SAPL,-

NECNP, TOWN OF HAMPTON, AND THE MASSACHUSETTS ATTORNEY GENERAL SEEKING A STAY OF THE LICENSING BOARD'S PAP.TIAL INITIAL DECISION AUTHORIZING ISSUANCE OF A LOW POWER LICENSE Sherwin E. Turk Senior Supervisory Trial Attorney  ;

i April 20,1987 1

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l TABLE OF (INIENTS t 4 u

PAGE(S)

TABLE OF AUIIERITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 INDK00CIION ............................................... 1 D I SCIJSS I N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

. A. Legal Standards Coverning Stay Requests .......... 2 B. The Pending Stay Requests ........................ 3

1. Likelihood of Success on the Merits . .... .. . . 3 (a) Need to Supplement the EIS ............. 3 i

(b) Failure to Carply with 10 C.F.R. 550.35(g) .............................. 8 (c) Violations of Atanic Energy Act . . . ... . . 9 (d) Means for Notification of the Public ... 10 (e) Consideration of Class 9 Accidents ..... 10 (f) Safety Parameter Display System ........ 11 i

i (g) Failure to Call Staff Project Manager As a Witness ........................... 12 s

2. Irreparable Injury .......................... 12

3. Hann t o Other Part i e s . . . . . . . . . . . . . . . . . . . . . . . 14

4. hhere the Public Interest Lies .............. 15

(INCLUS I N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 l 4 '

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TABLE OF AUIKRITIES g -

PAGE(S)  ;

l JUDICIAL DECISICNS i CitizcIns For An Orderly Energy Policy, Inc. v. County I of Suffolk, 604 F.Supp 1084 (E.D.N.Y.1985), aff'd per curian, F.2d (2d Cir., March 9, 1987) .......... 5 Cuomo v. Long Island Lighting Co., No. 84-4615 (N.Y. Sup.

Ct., Feb. 20, 1985), aff'd, 511 N.Y.S. 2d 867 (App.

Div., Feb. 9, 1987) ...................................... 5 Cuano v. NPC, 772 F.2d 972 (D.C. Cir. 1986) ................. 4, 6, 7, 13 Virginia Petroleun Jobbers Association v. FPC, 259 F.2d 921 (D.C. Cir. 1956) ............................. 2 ail \11NISIFATIVE DECISIGIS ,

Comnission Long Island Lighting Co. (Shorehen Nuclear Power St at ion) , CLI-8 5-1, 21 KTIC 2 75 (198 5) . . . . . . . . . . . . . . . . . . . . 4, 9 Iong Island Lif tting Co. (Shorehen Nuclear Power Station),

1 CLI-85-12, 2; NRC 1587 (1985), stay':Hending appeal

denied, cuano v. NRC, 772 F.2d 972 (J.C. Cir.1986),

appeal disnissed as moot, F.2d (D.C. Cir.,

j March _ , 1987) .......................................... passim Iong Islcnd Lighting Co. (Shorehen Nuclear Power Station), l CLI-84-9, 19 t'RC 1323 (1984) ............................. 4, 5, 14 i

Pacific Gas and Electric Co. (Diablo Chnyon Nuclear

Power Plant , Lhits 1 azul 2), CLI-84-5,19 NRC 953 (1984).. 13

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Public Service Co. of New Hanpshire, (Seabrook Station, Units 1 and 2), CLI-87-02, 25 NRC (April 9,1987) . .. 8, 15 Atomic Safety and Licensing Appeal Board Cleveland Electric Illuninating Co. (Perry lticlear Power Plant , Ihits 1 and 2), AIAB-820, 22 IEC 743 (1985) . . .... . 3, 13

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Duke Power Co. (Catawba Nuclear Station, thifs 1 and 2), 3 AIAB-794, 20 IGC 1630 (1984) ............................. 3, 13 i

Florida Power & Light Cu. (St. Lucie Nuclear Power Plant, Lhit 2), ALAB-404, 5 FIC 1185 (1977) ..................... 14

- Iong Island Lightinir Co. (Jamesport Nuclear Power Station, Lhi ts 1 and 2) , A AB-481, 7 NRC 807 (1978) . . . . . . . . . . . . . . . 3

. . Iong Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), AIAB-810, 21 NRC 1616 (1985) .................... 13 Philadelphia Electric Co. (Limerick Generating Station, Lhits 1 and 2), AIAB-789, 20 NRC 1443 (1984) ............. 3 Public Service Co. of New Hanpshire (Seabrook Station, Lhi ts 1 and 2) , AIAB-731, 17 NRC 1073 (1983) . . . . . . . . . . . . . 10 Public Service Co. of New Hanpshire (Seabrook Station, Lhits 1 and 2), AIAB-854, 24 FPC (Dec. 8, 1986) ..... 9 Public Service Co. of New Hmpshire (Seabrook Station, Lhits 1 and 2), AIAB-853, 2413iC (Nov. 20, 1987),

set aside, CLI-87-02, 25 NRC (April 9, 1987) ......... 8, 10 J

} ~~~ Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), AIAB-673, 15 NRC 688 (1982) ........................................ 2 Toledo I:dison Co. (Davis-Besse Nuclear Power Station.

Ti ts 1, 2 and 3), AIAB-385, 5 NRC 621 (1977) . . . . . . . . . . . . 14 Atomic Safety and Licensing Board Public Service Co. of New Hanpshire (Seabrook Station, Units 1 and 2), IBP-87-10, 25 NRC (1987), as modified by " Order (Correcting Errata in Partial Initial Decision)", March 27, 1987 ....................... passim Public Service Co. of New Hanpshire (Seabrook Station, Units 1 and 2), Memorandtrn and Order (Denying SAPL's ,

Mot ion of February 6, 1987) (March 23, 1987) . . . . . . . . . . . . . 10 l Public Service Co. of New Hanpshire (Seabrook Station, Lhits 1 and 2), Memorandtrn and Order (Denying Mass '

Motion of March 3, 198 7) (March 25, 1987) . . . . . . . . . . . . . . . . 10

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PAGE(S) 5 .

Y Public Service Co. of New Hanpshire (Seabrook Station, Lhits 1 and 2), .%knrrend=: and Ordsr (',"e.eralizirg Prehearing Conference, and Ruling on Motions for Sunrary Disposition) (May 11, 1983), appeal dismissed, ALAB-731, 17 NRC 1073 (1983) ............................. 10 STATUTES 42 U.S.C. I 2239(a) ........................................ 9 42 U.S.C. I 2242 ........................................... 10 REN.?IATIOS 10 C.F.R. I 2.720(h) ....................................... 12 10 C.F.R. I 2.788(d) ....................................... 2 10 C.F.R. I 2.788(e) ....................................... 2 10 C.F.R. I 50.33(g) ....................................... 8 10 C.F.R. I 50.47(d) ....................................... 9 10 C.F.R. I 50.57(c) ....................................... 5, 9 e

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY CO,B! MISSION i l l PFFO!!E TI!E 1TO?,*IC GAI'ETT AND LICEHSING APPEAn UUAxu In the ? tatter of )

) Docket Nos. 50-443 OL-1 PUBLIC SERVICE COMPANY OF ) 50-444 OL-1 NEl',' HAT 4PSHIRE, et al.~~

) Onsite Emergency Planning

) and Safety Issues 7

(Seabrook Station, Units 1 and 2) )

i NRC STAFF'S RESPONSE TO P10TIONS FILED BY SAPL, NECNP, TGliN OF HAMPTON, AND THE ?!ASSACHUSETTS ATTORNEY GENERAL SEEKING A STAY OF THE LICENSING BOARD'S PARTIAL INITIAL ,

DECISION AUTHORIZING ISSUANCE OF A LOW POWER LICENSE l l l INTRODUCTION On March 25, 1987, the Licensing Board issued its Partial Initial j Decision ("FID ") , authorizing issuance of a license to operate Seabrook Station, Unit 1, at up to 5% of rated power, subfect to a condition 'mposed with respect to an environmental qualification issue (PID, allp op.

i at 66-67). O Motions seeking a stay of the Licensing Board's PID were filed by hiassachusetts Attorney General James M. Shannon, NECNP, SAPL, J

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1/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LB P-87-10, 25 NRC (1987), as modified by " Order (Correcting Errata in Partial Tnitial Decision)", dated March 27, 1987. The Board identified three further conditions, relating to the Safety Parameter Displsy System (SPDS), which it required the Applicants to satisfy prior to issuance of a full power license (PID, slip op. at 08).

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l and the Town of Hampton. U For the reasons set forth below, the stay requests st.ould be denied. 3 -

. s DISCUSSION a

. A. Legal Standards Governing Stay Requests.

Pursuant to 10 C.F.R. I 2.788(e), b ' an application for a stay is to, ,

he considered in light of the following criterin: '

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and ,

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(4) Where the public interest lies.

1 Of these four factors, no one single factor is necessarily dispositive of a stay request; rather, the strength or weakness of the movant's

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'-2/ See (a) " Attorney General James M. Shannon's Application For a Eiay of Licensing Board Order Authorizing Issuance of Operating License to Conduct Low-Power Operation ," dated April 6, 1987 1

(" Mass AG"); (b) "New England Coalition on Nuclear Pollution's Motion for a Stay of a Low Power OperationyPending Full Power Decision or Appellate Review ," dated April 8, 1987 ("NECNP"); I (c) " Motion for Stay on Behalf of the Seacoast Anti-Pollution League," dated April 8,1987 ("SAPL"); and (d) " Town of Hampton's Application for a Stay of Licensing Board Order Authorizing Issuance of a License to Conduct Low Power Operation," dated April 8,1987

("Hampton").

3/ In a telephone conference call held on April 16, 1987, the Appeal Board granted the Staff's unopposed oral request for a 5-page extension of the page limitation set by 10 C.F.R. I 2.788(d).

1 4/

10 C.F.R. I 2.788(e) incorporates the / criteria established in i

Virginia Petroleum Jobbers Ass'n v. FPC, f259 F. 2d 921, 925  !'%l (D.C. Cir. 1958). See, Je.., Southern California Edison Co. (San ( l Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 '

NRC 688, F91 (1982). ', l

showing on a particular factor will determine how strong his showing on the other factors must be in order to justify' a stay. Cleveland Electric ;

Iliuminating Co. u'erry Nuclear Power Plant, Units 1 and ?), ALAB-820, 22 NRC 743, 746 n.8 (1985). Ilowever, the most crucial factor has often been found to be the question of irreparable injury, and a stay will ordinarily not be granted without a demonstration that the movants will suffer irreparable injury in the absence of the stay. See, eg, Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

ALAB-789, 20 NRC 1443,1446 (1984); Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-481, 7 NRC 807, 808 (1978).

Where there is no showing of irreparable injury, the movants must demonstrate "that a reversal of the decision under attack is not merely likely, but a virtual certainty." Perry, supra, 22 NRC at 746 n.8. -

B. The Pending Stay Requests.

In the following discussion, the Staff addresses the movants' showing with respect to each of the four standards set forth above.

(1) Likelihood of Success on the Merits.

t (c) Need to Supplement the EIS.

The Attorney General asserts that the Licensing Board erred in not requiring the preparation of a supplemental Environmental Impact Statement

("EIS"), "to assess the costs and benefits of low power operation

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separately from khe costs and benefits of full power operation, particularly

-5/ The Appeal Board has noted that if the movant for a stay fails to rueel its burden on the first two factors in 10 C.F.R. I 2.788(e), it -

is unnecessary to " dwell long on whether a stay would cause serious injury to the applicant" or to " delve . deeply into public interest considerations. " Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-704, 20 NRC 1630,1633 (1594),

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' since it now appears that no full-power operating license is likely to be issued" (Mass AG at C; see also NECNP at 5-s). 6,/  ;,

The Commission's decisions in Shoreham U control the re~nolution of this issue. In CLI-84-9, the Commission stated that, "in the usual case NEPA does y not require any separate envirmmental anaiysis of the proposal to issue a low power operating license," beca,use the low power license "is

'r simply a small co'mponent or intermediate step to the full-power license" l l' ~

y j and the env'ronmental evaluation for low power operation is s'tbsumed in 1

the EIS for full power operation. Id. ,19 NRC at 1326. b Further, the Commission found that the Intervence'y belief that Shoreham would never receive a full power lfacnse was " based on its speculation on the outcome

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6/ The final environmental impact statement for operation of Seabrook was issued in December 1982. See " Final Environmental Statement Related to the Operation of Seabrook Station, Units 1 aid) 2,"

NUREG-0395 (December 1982) * (admitted into evidence as < Staff Exh. 2, at 1-Tr.1754 (Augtest 23, 1983)). ,

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- See Long Island Lighting do. (Shoreham Nuclear Power Station) ,

CD-85-12, 21 NRC 1587- (TDTS) (reaffirming CLI-84-9,19 NRC 1323 (1984)), stay pending appeal denied, Cuomo v. NRC (D.C. Cir. 1986), appeal dismissed as moot, Id. , g 772F.2d F.2d 972 (D.C. Cir., thrch , 1987).

See also, Long Tsland Lighting Co.

(Shoreham fluelean Power Station), CLI-85-1, 21 NRC 275, 278-79 (1985). '

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8_/ The Commission in CLI-85-12 providad a general summary of the benefits and costs of low-power testing, finding that "the benefits of low power operaticOclearly cutweigh the environmental costs." 21

~ NRC at 1590.. The Commission observed the principal benefits of low power testing to be the early discoveryJand correction of problems which might otherwise prevent or delay . full power operation; the

~ " evaluation , assessment and famiharization with technical specif1-cations and operating procedures"; and the provision of " operator and plant staff experience on the actual plant in a critical but still low power operaticn." Id., at 1590, 1391. Arrayed against these benefits were the "well Tnown" environmental effects of low power testing, "1.e., modcrate irradiation of the core and contamination of the remainder of the primary coolant system , with no significant impact on the surrounding environment by releases of effluents during normal operation." ,Id. , at 1590.

, of the adjudication of offsite emergency pisnning issues." The Commission t

rejected sgch " speculation", and held that unuertainty over the outcome of 4 offsite emergency plahning litigation , like other contested full power issues, did not reoufre the preparation of a Icw-power EIS. Id. at 1327 In CLI-85-12, the Commission reaffirmed its decision in CLI-84-9, following the issuance of two decisions by a New York Supreme Court and

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a federal District Court adverse to LILCO, b and the development of confusion as to whether Suffolk County might participate in emergency planning. The Commission stated that "[r]egardless of what is 'the County's' position," and notwithstanding the fact that the court decisions 1

" affect the degree of uncertainty over whether Shoreham will get a full power license," it adhered to its determination that uncertainty over the outcome of full power issues does not require the preparation of a supple-mental EIS. CLI-85-12, 21 NRC at 1589. The Commission observed that whenever a low power motion is filed while full-power issues are pending

("a common occurrence"), there is always uncertainty over the outcome of the full-power proceeding; however, delaying the low-power license until that uncertainty is resolved would eliminate the benefits of early low power testing, and would ignore 10 C.F.R. I 50.57(c), which permits low power operation where there le reasonable assurance that such operation presents nc undue risk to the public health and safety despite the pendency of

!' 9/

The New York Supreme Court found that LILCO lacked the legal authority to implement its offsite emergency plan, while the federal District Court found that Suffolk County could not be compelled to participate in offsite emergency preparedness. See Cuomo v.

_Long Island Lighting Co. , No. 84-4615 (N. Y. Sup. "'0I. , Feb. 20, 1985), affd, 511 N.Y.S. 2d 867 (App. Div., Feb. 9, 1987);

Citizens for an Orderly Energy Policy. Inc. v. County of Suffolk, 604 F. Supp. 1084 (E.D.N.Y. 1S85), affd per curiam, F.2d (2nd Cir. , March 9,1987).

full-power issues. Id. , at 1590,1591; accord, Cuomo v. NRC, 772 F.2d I

i at 076-77.I  !

The uncertainties" recited by Intervenors here' do not warrant a different result than that reached by the Commission in Shoreham. While

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the Attorney General argues that the Commonwealth of Massachusetts and the Massachusetts towns in the EPZ have " consistently" refused to participate in emergency planning, unlike Shoreham where the County Executive reversed his position, the Commission in Shoreham indicated that regardless of the County's current position, it was confident that the State and County would participate in emergency planning once the Commission reached a final health and safety determination. On this basis, the Commission determined it would "not take as an element of uncertainty in the eventual full-power operation of Shoreham the possibility that either the State or the County will refuse to cooperate." CLI-85-12, 21 NRC at 1589-90. The confidence expressed by the Commission in Shoreham leads to the conclusion here that the Commonwealth and towns in Massachusetts will participate in emergency planning once a final health and safety decision is reached by the Commissien, b i

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10/ NECNP attempts to distinguish this case from the decision in Cuomo j v. NRC, supra, on the grounds that there, (a) the Licensing Board had found that an adequate emergency plan was achievable, and

. (b) the County Executive had changed his position suggesting that the County might still participate in emergency planning (NECNP at 8 n.10). These facts do not distinguish Cuomo. First, while

, LILCO's plan was found to be feasible, implementation of that plan was recognized to be contingent on participation by State or local officials. In this regard, while the County Executive's position had changed, the Court of Appeals noted that this ' shift had been nullified by judicial action and had been rejected by the County legislature; and it observed that additional litigation and political confrontation appeared likely, and it was therefore " virtually (FOOTNOTE CONTINUED ON NEXT PAGE)

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Intervenors further claim that the Applicants have not submitted a I l

compensatory emergency plan for Massachusetts portions of the EPZ (unlike 4 l 4

the utility's submission" of a compensatory plan in Shoreham). However, the Commission issued CLI-85-12 knowing that a New York court had found 1 l

that LILCO could not implement its offsite plan and a federal court had l l

found that the Courty could not be compelled to participate in emergency i planning; thus, there remained substantial uncertainty as to whether l LILCO's plan would be implemented. Further, even if no compensatory utility plan is submitted here, E other factors could lead to the issuance i

of a full power license for Seabrook, e.g., a change in the views of the I current or future leadership of the Commonwealth of Massachusetts, the granting of Applicants' petition for waiver of the regulations requiring a l ten-mile EPZ, b or the adoption of the pending proposed rule with l

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)  ;

impossible to predict how long the State and County will maintain their opposition to the en.ergency evacuation plan." Id., at 975.

Despite these uncertainties , the Court went on to approve the Commission's " central conclusion" that "some possibility always exists at the time a low power license is issued that a final operating license may not be granted," but that NEPA did not require the pre-paration of a supplemental EIS every time there is a change in the risk that a full power license might not be granted. Id. , at 975-76.

-11/ .On April 8,1987, the Applicants filed an extensive set of emergency plans for Massachusetts portions of the EPZ, which the Applicants have characterized as "a utility plan". See Applicants' " Suggestion of Mootness and Request for Vacation TStay," filed before the

, Commission on April 7,1987, at 2. Ilowever, as discussed infra at 9, the significance of this submission is under consideration by the Commission and should not be dealt with here.

12/ While NECNP argues that the Applicants' petition is " technically and legally unsupportable" (NECNP at 6 n.9), that statement merely reflects NECNP's view, and no such finding has yet been made by the Licensing Board. Similarly, NECNP's assertion that any decision l

(FOOTNOTE CONTINUED ON NEXT PAGE) 1

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. -R-respect to instances where State or local officials refuse to cooperate in emergencygplanning. -

4 Finally, assuming that NECNP's characterization of the recent l

Securitics and Exchange Commission filing is correct (NECNP at 7), the

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cited statement that "Secbrook would become economically unviable given a prolonged delay in licensing" does not provide any indication as to how

" prolonged" a delay would cause the plant to become "unviable", nor does it provide any reason to believe that the Applicants may abandon their OL application. Accordingly, this statement does not establish new circumstances requiring the preparation of a supplemental EIS.

(b) Tallure to Comply With 10 C.F.R. 8 50.33(g).

The Attorney General and NECNP assert - that a low power operatiIg license cannot be issued until offsite plans have been submitted for Massachusetts portions of the EPZ, pursuant to 10 C.F.R. I 50.33(g)

(Mass AG at 4-5: NECNP at 4-5). The Appeal Board has previously i

i resolved this issue in favor of Applicants, E althouFh its decision was recently set aside by the Commission, as a matter of policy, pending receipt of the parties' views on Applicants' " Suggestion of Mootness and Request for Vacation of Stay" filed in connection with the Applicants' submission of an emergency plan for Massachusetts. El (FOOTNOTE CONTINUED FRCM PREVIOUS PAGE) granting the petition is " highly unlikely" to be sustained on review, merely represents NECNP's view and does not sustain NECNP's burden of showing a likelihood of success on the merits.

-13/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-853, 24 NRC (Nov. 20,1986).

-14/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-02, 25 NRC (April 9,1987),

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The Commission has treated this issue as a policy matter, subject to its uniqu( deliberations, and is continuing to review this matter in  ;

connection with the Applicants' pending motion. Accordingly, the Appeal Eoard should decline to reach this issue and defer to the Commission's i - consideration of the matter, b (c) Violations of Atomic Energy Act.

The Attorney General and NECNP assert that the issuance of a low power license prior to the resolution of offsite emergency planning issues, pursuant to 10 C.F.R. El 50.47(d) and 50.57(c), deprives them of their right to a hearing under Section 189(a) of the Atomic Energy Act, 42 U.S.C. 82230(a). The Commission has previously rejected related arguments. See Long Island Lighting Co. (Shoreham Station, Unit 1),

CLI-85-1, 21 NRC 275, 278-79 (1985). Likewise,' the Appeal Board in this proceeding has approved the issuance of fuel load and low power licenses, pursuant to 10 C.F.R $$ 50.47(d) and 50.57(c), despite the pendency of full power issues. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC (Dec. 8,1986), slip op 15/ NECNP also neserts that in the absence of an off-site plan for Massachusetts, there is an insufficient basis to find that the state of on-site emergency preparedness is adequate, in that such a finding requires consideration of certain aspects of offsite planning elements

, such as " communications, notification, assistance agreements, fire protection and medical organization, and the like" (NECNP at 5). In ,

this proceeding, however, the Staff has already reached a determination that the on-site plans are adequate such that ' a low power license may be issued. See Supplement No. 4 to the " Safety Evaluation Report Related to the Operation of Scabrook Station , j Units 1 and 2," NUREG-0806 (May 1986), at 13 13-18 (admitted I into evidence as Staff Exh. 4). NECNP has not contested this  ;

determination, nor has it provided any reason to believe that the l Staff's determination is incorrect.

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at 11-13; Id., ALAB-853, slip op. at 8-11, set aside on other grounds, l CLI-87-02,{ supra. $ I  ;

(d) Means for Notification of the Public.

l The Attorney General asserts that the Licensing Board erroneously l rejected two late-filed contentions concerning the sirens in Merrimac, MA, 1

and East Kingston, NH (Mass AG at 5-6). The Licensing Board considered these contentions and determined that they failed to satisfy the Commission's criteria for late-filed contentions and did not support a reopening of the record. b The Board's decisions in this regard were well supported and did not constitute "an abuse of discretion" (Mass AG at 6).

l (e) Consideration of Class 9 Accidents.

The Attorney General asserts (Id.) that the Licensing Board erroneously granted Applicants' motion for summary disposition of SAPL

[ Supplemental] Contention 3, in an Order dated May 11, 1983; b that i

contention had asserted that the FES for Seabrook (Staff Exh. 2) gave l l

16/ The Attorney General and NECNP also assert that the Commission lacks the authority to issue a low power license prior to resolution.of all licensing issues, in that the statutory authorization to issue temporary licenses prior to the completion of hearings, 42 U.S.C.

I2242, has expired (Mass AG at .6-7; NECNP at 2-3). This argument is misplaced, in that the Applicants are not seeking a temporary operating license pursuant to the cited statutory provision.

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-17/ See " Memorandum and Order (9enying SAPL's Motion of February 6 TDT 7)", dated March 23, 1987; and " Memorandum and Order (Denying Mass.' Motion of March 3,1987)", dated March 25, 1987.

- 18/ " Memorandum and Order (Memorializing Prehearing Conference, and Ruling on Motions for Summary Disposition)," dated May 11, 1983.

SAPL's appeal from the Board's disposition of this contention was I

dismissed, and its petition for directed. certification denied, in  !

Public Service Co. of New Ham? shire (Seabrook Station, Units 1 and 2), ALAB-731,17 NRC 1073 (1783).

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Inadaquate consideration to Class 9 accidents under the Commission's Interim Policy Statement of Junc 13, 1980. However, the Licensing Board ;

carefully reviewed this" matter and found that the Seabrook FES contained an entensive accident analysis in full compliance with the r'ommission's Interim Policy Statement, and it properly granted summary -disposition of the contention. E 1

(f) Safety Parameter Display System.

SAPL asserts that the Licensing Board erred in failing to require a

" fully compliant" safety parametcr display system (SPDS) prior to issuance of a low power license (SAPL at 2-5). The Licensing Board gave proper consideration to SAPL's assertions, noting that NUREG-0737, Supplement 1, did not include the SPDS among the TMI items required to be in place prior to fuel load or initial criticality, and that it permitted the Staff and j Applicants to establish a mutually acceptable schedule for implementation of the SPDS (PID at 9). The Board imposed a burden on the Applicants --

I not upon SAPL, contrary to its assertion (SAPL at 4) -- requiring them to demonstrate reasonable assurance that the public health and safety would be protected if deficiencies in the SPDS were deferred until the first refueling outage. The Board found that most of the deficiencies could be 4

deferred until the first refueling outage, but that the Applicants had not sustained their burden as to certain other deficiencies, which the Board 1 I

l m l g/ Responses opposing ' Applicants' motion for summary disposition of this contention were filed by SAPL and the State of New Hampshire, while the Staff supported the motion. See "NRC Staff Response to Seacoast Anti-Pollution League's Motion for Summary Disposition

! (Contention SAPL Supp. III)," dated March 23,1983, at 8 n.2. No response was filed by the Massachusetts Attorney General either to the Applicants' motion or to SAPL's corresponding motion seeking

summary ' disposition of the contention in SAPL's favor.

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i determined could be deferred for 5% power operation without undue risk to the publict health and safety (PID at 12). SAPL has not asserted that the 4 7 .' s deferral of thsse items poses an undue risk to the public health  !

and scfety, nor has it provided any basis to support its belief that under  !

. NUREO-0737 or NRC regulations, all SPDS deficiencies must be resolved prior to low power operation.

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t (g) Failure to Call Staff Project Manager As A Witness.

SAPL asserts that the Licensing Board erred in refusing to call the NRC Staff project manager for Seabrook to testify as to why the schedule agreed to by the Staff and Applicants for implementation of the SPDS had not been enforced (SAPL at 5-6). The Licensing Board properly resolved this issue. In response to SAPL's motion to compel the project manager's attendance, on September 29, 1986, the Board found that SAPL had failed to request the issuance of a subpoena ad testificandum (Tr. 51), that it had failed to demonstrate general relevancy (Tr. 52), that it had not demonstrated exceptional circumstances as required by 10 C.F.R.

I 2.720(h) (Tr. 52-53), b and that the timing issue raised by SAPL was not in issue (Tr. 53-55). SAPL has failed to provide any reason to believe that these rulings were incorrect.

(2) Irreparable Injury.

The Attorney General asserts that irreparable harm will be caused by low power operation, in that (a) high-level radioactive waste will

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20/ 10 C.F.R. I 2.720(h) provides that the designation of Staff witnesses is to be made by the Executive Director for Operations, and the attandance and testimony of any other NRC personne) may only be compelled upon "a showing of exceptional circumstances, such as in a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations."

accumulate from lov' power operation; (b) frradiation of the fuel and plant componentq will occur; (c) worker exposure to potentially harmful radiation will occur (d) the irradiated fuel and plant components will lose their salvage value; and (e) the Attorney General will have irrevocably lost his right to have his appeal decided prior to low power operation (Mass AG at 8-9). NECNP makes similar assertions (NECNP at 8), and it further asserts that "should a radiological accident occur," it would cause irreversible health demage to the surrounding population (Id., at 8-9). b Some of these assertions are also made by SAPL and the Town of Hampton (SAPL at 6; IIampton at 2).

Similar assertions have been considered and rejected in other pro-ceedings. Thus, in Cuomo v. NRC, supra, 772 F.2d at 976-77, the Court of Appeals held that irreparable harm from low-power testing was not established by assertions concerning (a) irradiation of the reactor; (b) wczker exposure to radiation; (c) the remote possibility that radiation might be released into the surrounding environment; or (d) the potential mooting of Intervenors' claims in the absence of a stay. - Moreover, the

--21/ NECNP further asserts, without explanation, that the issuance of a low power license without first reaching a "no significant hazards consideration" finding, and without first conducting a low power environmental analysis, results in irreparable harm p_er se (NECNP at 9). These unexplained assertions, however, do nTt satisfy NECHP's burden of demonstrating the existence of irreparable harm.

See Cuomo v. NRC, supra, 772 F.2d at 976-77.

-22/ Accord, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-794, 20 NRC 1630, 1633-35 (1984). See also, Pacific Gas &

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI 5, 19 NRC 953, 964 (1984) (radiation releases); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 748 n.20 (1985) (speculation about a nuclear accident); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 (1985)

(mooting of intervenor's claims).

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, ' i consequences of low power operation are well known, are subsumed within the consequences of full power _ operation which were analyzed in the FES, 4 and do not support the" conclusion that low power operation will irreparably I

damage the environment. See CLI-84-0,19 NRC at 1326-27. E In sum, 3

. Iow power operation will not result in irreparable harm.

(3) Harm to Other Parties.

The movants assert that a stay of low power operation will not result in harm to the Applicants, in that full power operation will not occur for at least a year -- and they assert that full power operation may never occur given the lack of emergency planning for Massachusetts (Mass AG at 9; NECNP at 9-10; SAPL at 6; Hampton at 2). Further, they assert that the benefits of er.rly low power operation will be lost in the event of a lengthy delay prior to issuance of a full power license (Mass AG at 9; NECNP at 9-10), and that the Applicants will benefit from a stay by avoiding an unnecessary expenditure of time and money (NECNP at 10).

The Commission has previously considered and rejected similar assertions in the Shoreham proceeding, finding that there is substantial value to low power testing even in the face of uncertainties as to whether 3

a full power license would be issued. CLI-85-12, 21 NRC at 1590. EI i

i Accordingly, these assertions should be rejected. l 3

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1

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4 23/ See also, Toledo Edison Co.

~~ (Davis-Desse Nuclear Power Station.

Units 1, 2, and 3), ALAB-385, 5 NRC 621 (1977) (consequences that are curable by Applicants' expenditure of funds do not establish

irreparable harm).

24/ See also, Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAD-404, 5 NRC 1185,1188 (1977) (intervenors would not be permitted to argue that applicant's expenditures might be rendered unnecessary by a stay).

I i 1 1

(4) Where The Public Interest Lies.

The spovants assert that the public inteiest favors a stay of the low  ;

power license, given the uncertainties as to whether a full power license will be issued for Seabrook. The Commission implicitly addressed this

. matter in CLI-87-02, in deciding as a matter of policy that the low power license should be stayed pending the submission of emergency plans for Massachusetts. In light of the Commission's decison, the Staff suggests that the issue of where the public interest lies be deferred to await the Commission's resolution of the Applicants' pending motion to vacate its stay as moot. In the event the Commission determines to lift its stay, the Appeal Board should be governed by the Commission's judgment that the public interest favors the issuance of a low power license.

CONCLUSION For the reasons set forth above, the movants' stay requests should be denied.

Respectfully submitted.

s 1 4bA E /4 i Sherwin E. Turk Senior Supervisory Trial Attorney l

Dated at Bethesda, Pfaryland this 20th day of April,1987 4

I

• DOCKETED I USNRC UNITED STATES OF AMERICA -

NUCLEAR REGULATORY '

COMMISSION 87 APR 28 P2 57

= s OFFICE C9Cr,)y#)" Y BEFORE THE ATOMIC SAFETY AND LICENSING API E ff6EOARD In the Matter of )

. ) Docket Nos. 50-443 OL-01 3

PUIILIC SERVICE COMPANY OF ) 50-444 OL-01

. NEW HAMPSIIIRE, et --

al. ) On-site Emergency Planning

) and Safety Issues (Scabrook Station, Units 1 and 2 )

CERTinICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO MOTIONS i FILED BY SAPL, NECNP, TOWN OF 2.sMPTON, AND THE MASSACIIUSETTS ATTORNEY GENERAL SEEKINO A STAY OF THE l LICENSING BOARD'S PARTIAL INITIAL DECISION AUTHORIZING j ISSUANCE OF A LOW POWER LICENSE" in the above-captioned proceeding have been served on the following by deposit in the United States

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1 mail, first class or, as indicated (*) by deposit in the Nuclear Regulatory Commission's internal mail system or, as indicated (**)

overnight delivery, this 20th day of April,1987.

Sheldon J. Wolfe, Esq. , Chairman

• Dr. Emmeth A. Luebke*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board

! U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l Washington, DC 20555 Washington, DC 20555 3

! Dr. Jerry Harbour

• Ms. Carol Sneider, Esq.**

1 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 Washington, DC 20555 Boston, MA 02108 ,

Beverly Hollingworth Richard A. Hampe Esq.

, . 209 Winnacunnet Road New Hampshire Civil Defense Agency  ;

Hampton, NH 03842 107 Pleasant Street '

, Concord, NH 03301 Sandra Gavutis, Chairman Calvin A. Canney, City Manager l Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street

! Kensington, NH 03827 Portsmouth, NH 03801 1

1 i

l l

l

- _. _ ., ., .__ . _ . - - - _ _ __, .-- - ~ _, _ _. ~ _ _ _ ._. _ _ - - . , _ - . _ . - - _ _ - . . _ _ .__i

Stephen E. Merrill Paul McEachern, Esq.

Attorney General Matthew T. Brock, Esq.**

George Dant Bisbee Shaines & McEachern  ;

Assistant Attorney General 25 Maplewood Avenue Office of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear

- Angie Machiros, Chairman State Representative

, Board of Selectmen Town of Hampton Falla 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, Esq.**

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.

Harmen & Weiss Assistant Attorney General 2001 S Etreet, 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 (POCH) 225 Franklin Street Boston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq. William Armstrong l Assistant General Counsel Civil Defense Director i Federal Emergency Management Agency Town of Exeter j 500 C Street, S'il 10 Front Street Washington, DC 20472 Exeter, NH 03833 Atomic Safety and Licensing Atomic Safety and Licensing

. Appeal Panel

• Board *

, U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 l

Jane Doughty Docketing and Service Section*

Seacoast Anti-Pollution League Office of the Secretary 5 Market Street U.Si Nuclear Regulatory Commission; Portsmouth, NH 03801 Washington, DC 20555 Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town IIall - 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. Mizner, 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 FrankUn Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq.

Holmes & Ellis 47 Winnacunnet Road Hampton, NH 03842

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. ,!/u e u L l l u b -

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Sherwin E. Turk l Senior Supervisory Trial Attorney 1

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