ML20209H639
| ML20209H639 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/04/1987 |
| From: | Curran D, Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2425 ALAB-853, OL-1, NUDOCS 8702060104 | |
| Download: ML20209H639 (11) | |
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2,% 2Ld5 Fe bruary 4, 198Q[JD UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
- CTi,
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CC In the Ma tter of
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Public Service Company of
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New Hampshire, et al.
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Docket Nos. 5 0-4 4 3 OL-1
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5 0-4 4 4 OL-1 (Seabrook Station, Units 1 & 2)
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ONSITE EMERGENCY
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PLANNING & TECHNICAL
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ISSUES NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S PEPLY BRIEF IN SUPPORT OF ATTORNEY GENERAL OF MASSACHUSETTS' APPEAL OF ALAB-853 Applicants and the NRC Staf f have filed briefs supporting ALAB-853 and disputing arguments made by the New England Coali-tion on Nuclear Pollution ("NECNP") in its Er ief in Support of At torney General of Massachussetts' Appeal of ALAB-853.
Their arguments fail to demonstrate that compliance with 10 C.F.R.
S 5 0. 3 3( g ) is not a licensing condition for zero power or low power operation at Seabrook.
I.
ALAB-853 Violates the Atomic Energy Act.
The NRC Staf f has attempted to side-step NECNP's argument that the decision reached by ALAB-853 is inconsistent with the Atomic Energy Ac t by dismissing it as a challenge to 10 C.F.R.
SS 50.57(c) and 5 0.47(d) that is not properly before the Commission and is also irrelevant to this case.
However, this mischarac-terizes NECNP's argument. While NECNP has asserted in a dif ferent pleading that S 50. 4 7( d ) is inconsistent with the Atomic Energy Act, the Commission need not entertain a challenge to S 50.47(d) ff h
)).50 p
0
. here in order to find that the Appeal Board's waiver of S 50.33(g) was inconsistent with the Atomic Energy Act.
As docu-mented extensively in NECNP's Opposition to Applicants' Motion for Authorization to Operate at Low Power, Congress did not intend to allow the licensing of nuclear power plants at any level of power before the completion of findings of compliance with NRC regulations, includ ing 10 C.F.R. S 50,33(g).
NECNP's opposition to the low power motion is relevant to this case because ALAB-853 directly raises the issue of whether the Com-mission has the authority to waive any regulation before issuance or a low power license.
Slip op. at 11-12.
Similarly, while NECNP does not agree with the Commission's interpretation of S 50.57(c), it has not here or elsewhere challenged the validity of that regulation.
II.
A License Application Must Ee Complete Before Issuance of a Licen,qe.
Ci ting 10 C.F.R.
S 50.47(a), Applicants contend that com-pliance with S 50.33(g) is not a prerequisite to the issuance of any operating license, whether it be for low power or full power operation.
Applicants attach great significance tc the fact that S 50.57(a) contains no requirement that an operating license application must be completed before a license can issue.
According to Applicants, the NRC staff can decide whether a plant has been built and will operate in conformance with the regula-tions, without reference to the license application, and the only 1
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. purpose of the application is to ensure the enforceability of measures that go beyond the Commission's standards.
This argument is without merit.
First, regardless of whether a license application is complete, the key requirement of 10 C. F. R. S 50.47(a) is that the plant will operate in conformity with Commission regulations -- which include 10 C.F.R. S 50.33.
Second, Ap plica n t s ' a ttemp t to discount the importance of a com-pleted license application is wrong and disingenuous.
The essen-tial function of the voluminous Final Sa fety Analysis Peport sub-mitted in support of an operating license application is to describe in detail the manner in which the applicant intends to achieve compliance with Commission regulations, which contain only the most general prescriptions for meeting the Commission's broad safety requirements.
As the Staf f and license applicant negotiate the means by which the applicant will satisfy the regulations, the FSAR is constantly and painstakingly amended to reflect changes in the design of the plant.1 It is ludicrous to 1
10 C. F. R. S 50.71(e) provides no support for Applicants' argu-ment that there is never any time at which the FSAR could be con-sidered " comp l e te. "
That provision requires a nuclear power plant licensee to update the contents of the FSAR to reflect all changes to the design or operation of the plant that are made after licensing.
Clearly, the terms of an operating license may be changed af ter a license is issued through the process of license amendments or operational changes under 10 C.F.R.
S 50.59.
Section 50.71(e) simply requires that those changes be d ocume n ted in the PSAR, which serves as the blueprint for opera-tion of the plant.
That section in no way provides or implies that a license application may be incomplete at the time of original licensing.
4-s ug g es t that the NRC Staff could find that Seabrook will operate in conformance with NRC regulations without reference to the operating license application.
III. 10 C. F.R. S 50.47(d) Provides No Basis for Exempting Applicants from S 50.33 (g ).
Relying on Long Island Lighting (Shoreham Nuclear Power Sta-tion, Unit 1), LBP-83-22, 17 NRC 6 08, 6 20, affirmed, CLI-8 3-13, 17 NRC 7 41 (1983), Applicants argue that "[j] ust as 10 C.F.R. S 5 0. 4 7( c ) (1 ) obviates the need for governmentally sponsored pla n ts, 10 C. F.R. S 50.47(d) obviates the need for any offsite emergency plans to be in existence at all prior to the issuance of an operating license for operation up to 5% o f rated power. "
However, the Shoreham decision does not " obviate" the need for governmental plans.
The Licensing Board specifically rejected LILCO's argument that S 50.33(g) requires the filing of local government offsite plans "only if such plans exist."
Id.
at 620.
That decision stands only for the proposition that a license applicant that does not comply with S 50.33(g) can nevertheless seek an operating license by submitting compensatory plans under S 50.47(c) (1).
Applicants have made no attempt to show satisfaction of S 50.47(c) (1), nor could they, because they have proferred no planning measures that are "conparable" to what could be achieved through compliance with Commission regulations.
See Long Island Lighting (Shoreham Nuclear Power Station, Unit 1), CLI-8 6-13 (July 2 4, 1986), slip op, at 16.
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- O 5-Second, Applicants fail to recognize the crucial distinction between " submission" of plans required by S 50.33(g) and " review" of emergency plans and planning required by S 50.47(d).
1 Certainly, the Licensing Board recognized that distinction in the Shoreham decision cited by Applicants, when it affirmed as a gen-eral proposition S 50.33(g)'s requirement that offsite plans must be filed as a condition of licensing, without holding in addition that emergency planning must be reviewed before low power licens-ing.
17 NRC at 6 20.
IV.
ALAB-853 Would Render 10 C.P.P.
S 50.33 (a ) a Nullity.
In its initial brief, NECNP a rgued that the Appeal Board's interpretation of S 50.33(g) would render it redundant of S 5 0. 4 7( d ) and thus nullify it, in contravention of the established presumption that all regulations must be interpreted to have independent effect.
Applicants and the NRC Staff do not address this issue, but irrelevantly note that S 50.33(g) was promulgated two years before S 50.47(d).
P r e s um a bly, it is their position that S 50.33(g) was repealed by 5 50.4 7(d).
The first response is that by this argument, NRC and Applicants would overturn the basic principle of statutory and regulatory construction that unless it is expressly revoked, a regulation retains its force.
Nor do the NRC or the Applicants cite any support for the proposition that the Commission nonethe-less intended to repeal S 50.33(g).
Despite the lack of any regulatory history of S 50.33(g),
the NRC suggests that the rule's purpose was to clarify that
. license applicants and not local government,s were responsible for the submission of offsite emergency plans.
NRC Brief at 4.
Even if it is true, this proves nothing.
What is important is that when the Commission promulgated S 50.47(d),it was aware that it already had a regulation requiring the submission of offsite emergency plans prior to licensing.
It was also aware that Con-gress was considering legislation that would require the submit-tal of offsite emergency plans before issuance of a " temporary" low power operating licenses.
See 4 2 U.S.C. S 2242 (expired December 31, 1983), which was passed by both houses of Congress in December of 1982.
The fact that the Commission did not rescind S 50.33(g) when it promulgated S 50.47(d) demonstrates that it intended 50.33(g) to continue to have independent effect.
In fact, the regulatory history of the emergency planning rules contradicts the Staff's and Applicants' position that the Commission inferentially repealed S 50.33(g) when it promulgated S 50.4 7(d).
In proposing S 50.47(d), the Commission assumed that before low power operation was allowed, some aspects of offsite emergency planning would already be in place and coordinated with onsite plans:
While the proposed rule would eliminate the need to have any NRC or FEMA review, findings, or determina-tions on the adequacy of offsite agencies, emergency planning and preparedness, the NRC review of the licensees' onsite response mechanism will necessarily include aspects of some of f site elements:
communica-tions; notification; assistance agreements with local law enforcement, fire protection, and medical organiza-tions; and the like.
. 4 6 Fed. Re g. 61,132, 61,133 Col. 1.
V.
ALAB-853 Unlawfully Shif ts the Burden of Proof to Intervenors.
The NRC Staff also disputes NECNP's argument that the Appeal Board's interpretation of 10 C.P.R. S 50.57(c) unlawfully shifts the burden of proof from Applicants to intervenors.
The Staff is simply wrong when it states that as a general matter, the Commis-sion has determined that offsite emergency planning is irrelevant to low power operation, and that therefore no unfairness to intervenors results f rom the Appeal Board's decision to ignore Applicants' noncompliance with 5 50.33(g).
The i
above-quoted notice of proposed rulemaking for S 50. 4 7( d ) clearly demonstrates the Commission's intention that some aspects of offsite emergency planning would be in place at the time of low-power licensing.
The Staff also claims that NECNP has no valid independent interest in the submission of plans that could have been jeopar-dized by the waiving of S 50.33(g), because the ultimate purpose of the regulation is only to achieve compliance with the Commis-sion's other emergency planning requirements.
However, NECNP clearly has an interest in preventing the operation and con-tamination of the Seabrook plant unless and until it is clear that there is some prospect that the plant will ultimately obtain an operating license.
Section 50.33(g) serves NECNP's interest in assuring that some plans exist before low power licensing is permitted.
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VI.
Applicants' Interest In Operating at Low Power is Outweighe.d By the Public Interest in Delaying Operation Until Com-pliance With S 50.33 (g ) is Achieved.
Finally, Applicants and Staf f argue that Applicants
- noncom-pliance with S 50.33(g) should be excused as a matter of policy.
Applicants attempt to. liken Seabrook the Shoreham case, in which the Commission authorized low power operation in spite of doubts that had been raised as to whether the Shoreham plant would ultimately obtain a full power license.
As the Commission recog-nized in that case, the low power rule is based on the premise that the benefits of low power operation generally outweigh the 1
uncertainty that a full power license would be issued.
21 NRC at 1590-91.
That balancing test does not tilt in favor of low power operation at Seabrook.
Unlike Shoreham, where the utlility had submitted some plan for an emergency response in the full emer-gency planning zone, and there was at least a threshold basis for considering whether the applicant could satisfy 10 C.F.R. S 5 0. 4 7( c ) (1), here nothing has been submitted which even begins to address the emergency planning needs for a major sector of the EPZ.2 Applicants' only strategy for coping with the lack of plans for Massachussetts has been to make a petition for a waiver 2
As Applicants concede, any plans they do submit must be tendered in good faith.
Applicants contend that they could satisfy S 50.33(g) by submitting a draf t plan for the Common-wealth of Massachussetts that was reviewed some time ago by FEMA.
Clearly,d a plan on behalf of a state government that has refusedin good faith if they now Applicants would not be acting submitte to implement it.
. of the ten-mile emergency planning zone requirement, which con-stituten a bald and untenable attack on the rule and on its underlying principles of emergency planning.
Without at least some reasonable prospect that Applicants will ultimately satisfy the Commission's emergency planning requirements and obtain a license, there is no independent justification for allowing this plant to operate at low power.
spectfully submitted,
/
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.i Diane Curran
&Ak SN.'
C.
Andrea Fe rster HARMON & WEISS 2001 "S"
St reet N.W.
Suite 430 Washington, D.C.
20009 (202) 328-3500 February 4, 1987
CERTIFICATE OF SERVICE Dearig Mr I certify that on February 4, 1987, copies of NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S REPLY BRIEF IN SUPPORT.hre ghgfeg4 :5 9FF ATTORNEY GENERAL OF MASSACHUSETTS' APPEAL OF ALAB-853 w on the following by first-class mail or as otherwise indicated:
CFF:a Sheldon J.
Wolfe, Chairman Rep. Roberta C. PE9sarm
,4
.avgj Atomic Safety and Licensing Board Drinkwater Road UMN4" U.S. Nuclear Regulatory Commission Ha mp ton, Fa lls, NH 03844 Washington, D.C.
20555 Phillip Ah rens, Esq.
Dr. Jerry Harbour Assistant Attorney General Atomic Safety and Licensing Board State House, Station # 6 U.S. Nuclear Regulatory Commission Augusta, ME 04333 Washington, D.C.
20555 Thomas G.
Dignan, Es q.
Gustave Linenberger Ropes & Gray Atomic Safety and Licensing Board 225 Franklin Street U.S.
Nuclear Regulatory Commission Bo s ton, MA 02110 Washington, D.C.
20555 Robert A.
Ba ckus, Esq.
Atomic Safety and Licensing Board Ba ckus, Me yer & Solomon Panel 111 Lowell St reet U.S. Nuclear Regulatory Commission Ma nches te r, NH 03105 Washington, D.C.
20555 Robert G.
Perlis, Esq.
Atomic Safety and Licensing Appeal Sherwin E. Tu r k, Es q.
Board Panel U. S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Wa sh ington, D.C.
20555 Washington, D. C.
20555 Mr. Angie Machiros, Ch a irma n Docketing and Service Board of Selectmen U.S. Nuclear Regulatory Commission Newbury, MA 01950 Washington, D.C.
20555 H. Joseph Flynn, Es q.
Mrs. Anne E. Goodman Federal Emergency Management Agency Board of Selectmen 500 C St reet S.W.
13-15 New Ma rket ' Road Waehington, D.C.
20472 Durham, NH 03842 George Dana Bisbee, Esq.
William S.
Lord, Se lectman Of fice of the Attorney General Town Hall -- Fr iend Street State House Annex Amesbury, MA 01913 Concord, NH 03301 Jane Doughty Allen Lampert SAPL Civil Defense Director 5 Market Street Town of Br entowood Po r tsm ou th, NH 03801 Exeter, NH 03833 Ca rol S. Sneider, Esquire Richard A.
Hamp e, Esq.
Department of the Attorney General Hampe and McNicholas 1 Ashburton Place, 19th Floor 35 Pleasant Street Boston, MA 02108 Concord, NH 03301
.. Stanley W. Knowles Gary W. Holmes, Es q.
Board of Selectmen Holmes & Ellis P.O.
Bo x 710 4 7 Winnacunnent Road No r th Hamp ton, NH 03826 Hampton, NH 03842 J.P.
Nadeau, Selec tman William Armr,trong 155 Washington Road Civil Defense Director Rye, New Hampshire 03870 10 Front Street Exeter, NH 03833 Richard E.
Sullivan, Mayor City Hall Calvin A.
Ca nney, Ci ty Manager Newburyport, MA 01950 City Hall 126 Daniel Street Alfred V.
Sargent, Chairman Portsmouth, NH 03801 Board of Selectmen Town of Salisbury, MA 01950 Ma tthew T.
Brock, Es q.
Shaines & McEachern Senator Gordon J.
Humphrey P.C.
Bo x 3 60 U.S.
Se na te Maplewood Ave.
Washington, D. C.
20510 Po r t smou th, NH 03801 (Attn. Tom Burack)
Edward A.
Th oma s Selectmen of Northampton FEMA Northampton, New Hampshire 03826 442 J.W.
McCormack ( POCH)
Boston, MA 02109 Senator Gordon J.
Humph rey 1 Eagle Square, Suite 507 Sandra Gavutis Concord, NH 03301 Town of Kensington RFD 1 Box 1154 Town of South Hampton East Kensington, NH 03827 P.O.
Bo x 10 East Kingston, NH 03827 Howard A. Wilber Atomic Safety and Licensing
- Lando W.
Ze ch, J r., Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
- Thomas M.
Roberts Alan S. Ro sen thal, Ch airma n U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Commission
- James K.
Asselstine Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Gary J.
Edles Atomic Safety and Licensing
- Frederick M.
Be rnthal Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
- Kenneth M.
Ca r r U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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- By hand Diane Curran
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