ML20209E998

Views of Applicant in Response to CLI-87-02.* CLI-87-02 Should Be Vacated on Grounds of Mootness & Extant Stay Should Be Vacated.Concerns Underlying Stay Have Been Alleviated.W/Certificate of Svc

ML20209E998
Person / Time
Site:	Seabrook
Issue date:	04/27/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
References
CON-#287-3242 CLI-87-02, CLI-87-2, OL-1, NUDOCS 8704300171
Download: ML20209E998 (17)

Text

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32f2-00LKETEE U3HPC

'87 NH 28 P4 :31 4/27/87 UNITED STATES OF AM g CAjg ,

j DOCMLiihG A 9 i; /!Cf.

Before The ORA!kM NUCLEAR REGULATORY COMMISSION

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In the Matter of )

) I PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 )

NEW HAMPSHIRE, et al. ) 50-444-OL-1 l

) I (Seabrook Station, Units 1 and 2) ) (Onsite Emergency Planning

) and Safety Issues)

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VIEWS OF THE APPLICANTS IN RESPONSB TO CLI-87-02 On January 9, 1987, this Commission issued an order pursuant to which it took review sua sponte of a decision of the Appeal Board herein, Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-853, 24 NRC

__ (Nov. 20, 1986). That decision of the Appeal Board had affirmed an earlier decision of the Licensing Board which had authorized the issuance to the Applicants of an operating license to load fuel and conduct precriticality testing. In its Order the Commission indicated that review was being taken with respect to a single issue, viz.:

"Whether as a matter of law or policy a utility applicant should be required to submit a radiological emergency plan (either a governmental ,

plan or a utility plan) for the entire emergency planning zone (EPZ) g$

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for the facility before any operating  ;

license may be issued. " Order at 1. I In its Order The Commission also entered a stay which forbad l

the Director of Nuclear Reactor Regulation from authorizing l l

any low power operation of Seabrook Station until the '

Commission had completed its review. While ALAB-853 was under l l

review at the Commission, the Licensing Board, on March 25, l

l 1987, issued a decision which authorized the grant of 1 authority to operate the facility at power levels up to and including 5% of rated power. Public Service Company of New Hampshire (Seabrook Station Units 1 and 2), LBP-87-10, 25 NRC

__ (March 25, 1987). As a result, as of that date, the only thing preventing operation of Seabrook Station was the stay j 1

issued by this Commission.1 l On April 9, 1987, the Commission issued a Memorandum and Order which reversed the decision of the Appeal Board.

Public Service Company of New Ha mpshire (Seabrook Station, Units 1 and 2), CLI-87-02, 25 NRC __ (April 9, 1987).

(Hereafter cited to the Slip Opinion). In so doing the Commission also:

" decided to take no action with respect to the outstanding license for fuel loading and precriticality testing because there is no safety benefit to be derived from removing the l fuel; moreover, fairness suggests in any event the need

1. A stay of that decision has been sought, and is now sub judice, the Appeal Board. ,

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I for a Commission decision on PSNH's mootness motion before taking any such action regarding the outstanding l license." CLI-87-02 at 3.

(Emphasis added).

The mootness motion referred to in the above quoted portion of CLI-87-02 is a " Suggestion of Mootness and Request for Vacation of Stay" (hereafter referred to as "The Motion")

filed with the Commission by the Applicants under date of 1 April 7, 1987. The Motion was premised upon the filing on i l

April 8, 1987, which did in fact occur, of the Seabrook Station - Radiological Emergency Preparedness Plan for the  ;

Commonwealth of Massachusetts. (Hereafter referred to as The Plan"). The thrust of the motion was that since the only l issue under review was whether a plan had been submitted, and The Plan had been submitted, the issue now under review was moot. From this it followed that the review proceeding should be dismissed and the stay vacated.

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In CLI-87-02, The Commission stated that the lateness j of The Motion coupled with the policy importance of the matter

'I under Commission consideration led it to issue CLI-87-02 despite the pendency of The Motion and, further:

"to treat PSNH's motion as a request t

to vacate today's decision on the grounds of mootness and to vacate the stay on the ground that the concerns which underlie the stay have been alleviated." CLI-87-02 at 2 n.1.

In addition the Commission solicited "[v]iews of the parties ,

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on the question of mootness and'any other matters relevant to the maintenance of the stay." Id. Herein the Applicants present their views.

In CLI-87-02 the Commission made clear that its decision was grounded in " regulatory policy." The Commission noted that in connection with the Shoreham proceeding it had:

" observed that the emergency planning issues raised there did 'not appear to us to be categorically unresolvable,' CLI-83-17, 17 NRC 1032 AT 1034 (1983), and we did not discount the possibility that a license for fuel loading and low-power testing could be held up if it were established, beyond significant doubt, that there were truly insuperable obstacles to issuance of a license for operation at any substantial power level." CLI-87-02 at 6.

After observing that " sound policy requires that we retain this option at least for Seabrook," id., the Commission went on to say:

"The filing of an offsite plan makes possible at least a summary review, of the type we performed in Shoreham, to determine whether adequate emergency planning is at least in the realm of the possible."

CLI-87-02 at 7 (emphasis added).

It is respectfully suggested that for the reasons I expressed below, The plan makes it clear that adequate l emergency planning "is at least in the realm of the possible."

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s In addition we believe that the history of this case makes clear that the filing of The Plan moots the issue that led to the entry of the stay.

ARGUMENT Turning first to the issue of legal mootness: it should not be forgotten that before the Appeal Board each of the Appellants, when questioned directly by the Appeal Board, acknowledged that the filing of some kind of plan would operate to remove any basis for a challenge to the Licensing Board's decision on the basis of 10 CFR 50.33(g). See colloquy between the Board and counsel for The Commonwealth of Massachusetts, Tr. Oct 31, 1986 at 65-66; colloquy between the Board and Counsel for SAPL, id.at 70-71. The plan being talked about was The Plan which has now been filed.

Physically present in the hearing room was the first volume of The Plan.

The question now becomes one of determining whether tl.e filing of The Plan demonstrates that adequate emergency planning in the Massachusetts portion of the EPZ is "in the realm of the possible." We submit that it does.

As more fully set forth in a letter under date of April 24, 1987 (NYN-87058) (hereaf ter cited as " Letter"), The Plan consists of a complete set (25 volumes) of the Massachusetts State and Local Radiological Emergency Response Plans and Procedures. Letter at 1. These volumes are:

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Massachusetts State Plan (one volume); The Nuclear Incident Advisory Team (NIAT) Handbook (with appendicies) (one volume);

Massachusetts Area I Plan (one volume); Massachusetts Compensatory Plan (one volume); six Local Communities' Plans / Procedures (twelve volumes); two Host Town Plans / Procedures (four volumes); ten Special Facility Plans (one volume); and four School Plans (four volumes). Letter, Enc. 1 at 1.

The Plan was developed by the State and Local Governments of The Commonwealth of Massachusetts with assistance from consultants (who, collectively, have successfully developed over 71 plans for various state and local governments) under the technical direction and supervision of the Civil Defense Agency of the Commonwealth of Massachusetts. Id.

The Plan describes and defines a total program of response which it is possible to implement for the j Commonwealth and the six municipalities in the event of an I

i incident at Seabrook. The Plan was developed to meet the guidelines of NUREG-0654 and drafts thereof have been twice reviewed informally by FEMA for compliance with NUREG-0654/ FEMA-REP-1 Guidelines ~and upgraded in response to these reviews. Letter at 1. Td. The most recent informal technical assistance review by FEMA was conducted in February of 1986. Letter Enc. 1 at 1. The Plan is the result of 6

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revisions made under the direction of the Massachusetts Civil Defense Agency in response to concerns identified in that last informal review. Id. The Massachusetts Civil Defense I

Agency and Department of Public Health are presently exercising the Massachusetts State Plan and NIAT Handbook I

portions of The Plan in conjunction with emergency j preparedness with respect to three other nuclear power plants  ;

which are authorized by the NRC to run at full power and which have Plume EPZs which lie wholly or partially within the Commonwealth . Id. There are three facilities which have EPZs which lie wholly or partially within The Commonwealth.  !

l They are: Yankee Nuclear Power Station located in Rowe,

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Massachusetts; Pilgrim Nuclear Power Station located in Plymouth, Massachusetts; and Vermont Yankee Nuclear Power Station located in Vernon, Vermont.

Prior to the time The Commonwealth suspended Seabrook related emergency preparedness efforts, several hundred members of the area and local emergency response organizations were trained to implement The Plan. Id. In addition, the equipment ( e.g. , communications equipment, dosimetery, etc.)

required to supplement the area local emergency preparedness capabilities was purchased and distributed or is available for j distribution. Id. at 1-2.

It is respectfully submitted that the foregoing, without more, permits and, indeed, mandates a determination by 7

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the Commission that " adequate emergency planning is at least in the realm of the possible" at Seabrook and a vacation of the extant stay prohibiting low power operation. It may be that some might argue that there is a present lack.of ability

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fully to implement The Plan at this juncture in light of the announced policy of The Commonwealth of Massachusetts to refuse to engage in further emergency planning and, therefore, the stay should remain. However, this argumenat ignores the concept that CLI-87-02 dealt only with, and, of necessity was concerned only with, the issue of whether some plan had been filed. The lack of a filing is what the Commission deemed to be the distinguishing feature between i

? Seabrook and Shoreham. See CLI-87-02 at 4-3. At the time Shoreham was allowed to operate at low power, implementation of the plan it had filed had not been demonstrated either. All that had been shown by the plan l

filing and " summary review" by the Commission was that i

adequate emergency planning was "at least in the realm of the possible." Id. at 7.

Although, we do not believe, for the reasons stated immediately above, that the implementation argument is relevant or material to the decision which the Commission has to make at this time, we offer the following: In the event of an incident at Seabrook, the onsite emergency response l

organization would be activated. Id. at 3. Insofar as The 9

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Commonwealth of Massachusetts is concerned, the main function of the onsite organization is notification. Id. At the outset of any incident the control room would notify the Massachusetts State Warning Point (State Police); the State Warning Point, upon receipt of such notification then proceeds to activate the Massachusetts emergency response organization and facilities in accordance with the Commonwealth plans and procedures; the most recent demonstration of these capabilities occurred during the NRC observed emergency preparedness exercise held on February 26, 1986. Id. After notification, the Massachusetts State emergency response could be implemented as described in the Massachusetts State Plan and NIAT Handbook. Id. The Commonwealth's response capability was most recently demonstrated on June 11, 1986 during the exercise for the Yankee Plant at Rowe, Massachusetts. Id. The draft FEMA assessment of those capabilities resulted in "no deficiencies" for The Commonwealth's Emergency Operations Center (EOC) and monitoring teams. Id. Coordination between the State of New Hampshire and The Commonwealth has been most recently demonstrated during the Vermont Yankee Nuclear Power Station Emergency Exercise and Remedial Exercise held April 17, 1985 and June 6, 1985 respectively. Id.

The Massachusetts Area I and local emergency response could be implemented as described in the State and local 9

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l Radiological Emergency Response Plans by the same l l

organizations that would respond to any natural or man made disaster. Id. During the period of recent flooding which ,

l occurred in the area of concern during the period of April 6 - l 9, 1987, many of the response functions that would be involved in a Seabrook incident were demonstrated including:

coordination with Federal response; activation of the Tewksbury Area I Massachusetts Civil Defense EOC; activation )

of the Seabrook Nearsite Emergency Operations Facility which coordinated requests for assistance from local Civil Defense organizations which included a request for assistance from West Newbury, Massachusetts; activation of the National Guard; emergency public information; establishing emergency communication; localized evacuations; opening mass care centers; establishing access control and traffic control; and removing of traffic impediments. Id. at 3-4.

It is the Applicants' belief that in the event of an incident at Seabrook the appropriate officials of the Commonwealth would do their duty and would act in accordance with The Plan. Our belief that this would occur is strengthened by applicable Massachusetts Law which provides:

"The director (of Civil Defense]

shall designate certain areas of the commonwealth as " nuclear power plant areas". For purposes  ;

of this section, said areas shall , j 10

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consist of all communities wi thin a ten mile radius of a nuclear power plant, whether or not said power plant is located wi thin the common weal th . l "The director shall annually publish and release to local ,

officials of each political l l

subdivision within areas preparedness and response plans which will permit the residents ,

of said areas to evacuate or take  !

other protective action in the event of a nuclear accident.

Copies of such plans shall be made available to the public upon request for a fee which is not to exceed the cost of reproduction.

"The director shall also annually publish and release through local officials to the residents of such areas emergency public information. Such information shall include warning and  !

alerting provision, evacuation routes, reception areas, and other recommended actions for each area.

"the director shall propose l procedures for annual review by state and local officials of the l preparedness and response plans I with regard for, but not limited to, such factors as changes in traffic patterns, population l densities, and new construction of schools, hospitals, industrial facilities, and the like.

Opportunity for full public participation in such review including a public hearing, shall be provided pursuant to [the Massachusetts ApA)." M'a ss . Ci vil a

Defense Act, M'ss. Acts 1950, c.

639, as amended, Sec. 2; M'ss.a Ann. La ws , Spec. L. C. 31, Sec 2.

(emphases added). ,

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j-a Massachusetts Law further provides-that the Governor of the Commonwealth has general direction and control of the Civil Defense Agency and upon declaration by him of an emergency he

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is vested with sweeping powers to cope with.the emergency. Id.

Secs. 4-5, 7-8. In short, it is not only realistic for the Commission to assume that if Seabrook is licensed to operate at 5% power that adequate provision will be made for emergency planning by State Officials, but also Massachusetts Law i commands them to do so. In addition, these same laws fully i

support the rationale that in the event of a real emergency at Seabrook, appropriate officials will respond and will do so pursuant to The Plan which the applicants have filed and which the Commonwealth itself authored. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC , CCH Nuclear Reg. Rep. para. 30,975 (July 24j 1986).

Further to the ques?. ion of'whether adequate emergency planning is at least within the realm of the possible, it is i to be noted that'the Applicants can, assuming noncooperation i

continues, develop and implement effective measures which are reasonable and achievable to compensate for the lack of cooperation and preplanning by The Commonwealth. Letter i

i Enc. 1 at 4.

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4 I CONCLUSION CLI-87-02 should be vacated on the grounds of mootness and the extant stay should be vacated; the concerns under13 ing the stay having been alleviated.

i Respectfully submitted, i

b-,

Thom'as G. DMrif6n, Jr.

George H. Lewald Kathryn A. Selleck Deborah S. Steenland Ropes & Gray

\ 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants 13

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a s . @smtLKETED CERTIFICATE OF SERVICE p4 gj I, Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on April 2 (,1987,3I.19:

made service of the within document by overnight ese6. 9 iWICL mail (or where indicated, by depositing in thW Uni 'lStaESs mail, first class, postage paid, addressed to): '

Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West. Towers Building 4350 East West Highway 4350 East kWest Highway Bethesda, MD 20814 Bethesda, MD 20814

,a qd Gary J. Edles Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S. Nuclear Regulatory Office and Court House Commission Post Office Square East West Towers Building Boston, MA 02109 4350 East West Highway Bethesda, MD 20814 Administrative Judge Sheldon J. Robert Carrigg, Chairman Wolfe, Esquire, Chairman Board of Selectmen' Atomic Safety,and Licensing Town Office ,

Board : Panel . Atlantic Avenue U.S. Nucleat Regulatory North Hampton, NH 03862 Commission  ;

East West Tovers: Building i 4350 East Waht Highway -

Bethesda, MD 320814 0

Dr. Emmeth A. Luebke Diane Curran, Esquire Atomic Safety,and Licensing Andrea C. Eerster, Es, quire Board Panel , Harmon & Weiss '

U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street,. N.W.

East West Towers Building Washingterb f0 20009 4350 East West Highway Bethesda, MD 20814

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s Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814

• Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 4

• Senator Gordon J. Humphrey Mr. Peter S. Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 1

Judith H. Mizner, Esquire Charles P. Graham, Esquire '

Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110 Lando W. Zech, Jr., Chairman Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 1717 H Street 1717 H Street Washington, DC 20555 Washington, DC 20555 James K. Asselstine, Frederick M. Bernthal, Commissioner Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 1717 H Street 1717 H Street Washington, DC 20555 Washington, DC 20555 4

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l Kenneth M. Carr, Commissioner Administrative Judge Helen Hoyt, U.S. Nuclear Regulatory Chairperson, Atomic Safety and Commission Licensing Board Panel ' l 1717 H Street U.S. Nuclear Regulatory Commission l Washington, DC 20555 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger William C. Parler, Esquire Atomic Safety and Licensing General Counsel Board Panel Office of the General Counsel U.S. Nuclear Regulatory 1717 H Street, N.W.

Commission Washington, DC 20006 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Martin G. Malsch, Esquire Deputy General Counsel Office of the General Counsel 1717 H Street, N.W.

Washington, DC 20006 p

Thomas G. Dignd'n, Jr.

(*=U.S. First Class Mail.)

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