ML20210A867
| ML20210A867 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/02/1987 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2433 ALAB-853, OL, NUDOCS 8702090032 | |
| Download: ML20210A867 (8) | |
Text
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.nz/33 Filed:
February 2, l{Qp0
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFF. ~
Cot:
Before the Commissioners In the Matter of PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL 50-443-OL/yyy19d (Seabrook Station, Units 1 and 2)
Docket No.
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REPLY BRIEF OF SEACOAST ANTI-POLLUTION LEAGUE IN SUPPORT OF REVERSAL OF ALAB-853 A.
650.33(g) is a response to a statutory requirement that every commercial power rector have an emergency plan as a condition to licensing.
As such, the regulation is far more than a mere
" checklist."
The Staff'r position is that 050.33(g) has no independent utility, and is "nothing more than a procedura) checklist."
(Staff
- Brief, p.
10, note 8.)
As discussed below, this ignores the basic requirement of 050.57(a)(2) that, in order to license, the Commission find that operation will be "in conformity with the application as amended."
The Commission's 650.33(g) regulation therefore cannot be trivialized as the Staff suggests.
(See pages 4-5, infra.)
More basically, however, the Staff's position ignores the full history of the Commission's emergency planning regulations.
The QS0.33(g) r eq u i r enie n t was adopted against the background of 8702090032 B70202 PDR ADOCK05000gg3 gg 3 G
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Congressional action to require Commission action on emergency planning in the wake of Three Mile Island. This Congressional act ion culminated in the enactment of the 1980 Authorization Act, Public Law No.96-295, 24 Stat. 780.
That statute provided for Commission consideration of ' State,
- local, or utility plans, and required emergency plans as a condition to license.
Thus, 650.33(g) not only made it clear that it was the licensee's f
responsibility to furnish plans, as Staff urges.
It also provided that the utility itself could furnish plans to compensate for 1
i deficiencies in governmental plans.1 I
Therefore, 650.33(g) was adopted in light of Congressional action to require emergency planning and must be considered to have a purpose beyond a mere staff " checklist."
It requires not only that Applicants be responsible for submission of plans, as Staff urges, but it also provides for a mat ter Congress intended to require:
3 That there be n_o licensing without emergency plans in place.
The most recently enacted Author ization Act, Public Law 98-553, October 30, 1984, is explicit on the subj ect.
It provides as f ollows:
(S ec. 10 8 ). Of the amounts authorized to be appropriated under this Act, the Nuclear Regulatory Commission may use such sums as may be necessary, in the absence of a State or local emergency preparedness plan which has been approved by the Federal Emergency Management Agency, to issue an operating license 192 of the (including a temporary operating license under Sec.
Atomic Energy Act of 1954, as amended) for a nuclear power reactor, if it determines that there exist a State, local, or utility plan which provides reasonable assurance that public health and saf ety is not endangered by operation of the f acility concerned."
SAPL would note that it does not agree that Congress ever intended 1.to permit a utility plan to be used in the total absence of governmental SAPL would concur with the position taken in a Note, 66 B.U.
plans.
Law Review 229 (March, 1986).
See pages 258-261. -.. _ _ - _ - _ _,
Thus, although there may be questions about the intent of Congress insofar as the extent to which a utility plan can be used to supplant totally lacking governmental plans, there can be no doubt about the intent of Congress to require that there be emergency plans in existence before the Commission is authorized "to issue an operat ing l icense..." This requirement was even extended to Section 192 Temporary Operating Licenses, which were formerly authorized at 5% power ascension increments, but initially were "not to exceed 5 percent of full ratedthermal power."
42 USC 02242(a).
The Senate debate on this issue is very revealing. On July 16, 1979, the Senate took up the issue of a legislative response to the f act that there were " dozens" of operat ing reactors around the count ry without acceptable emergency plans.
The Nuclear Regulation Subcommittee, chaired by former Senator Gary Hart, offered an amendment that would require emergency plans to be developed for all operating reactors within a nine-month period.
Oppos i t ion to the Subcommi t tee's Bill came f rom Senator Johns ton of Louis iana. He was concerned about the possibility of a recalcitrant governor being thus empowered to force the closure of an operating plant.
He proposed that in the event of a state refusal to act, the NRC be authorized to impose "an interim Federal plan." This generated debate on whether such a Federal role would impair the traditional i
l rights of the states over civil defense, which Senator Simpson of Wyoming likened to the State's traditional land use power.
In the end, the Johnston amendment was defeated.
Congressional Record, r
July 16, 1979, pages 18663-18666.
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However, the important point, as reflected in the clear language of the statute, is that there was agreement between all the senators on the need for emergency plans as a condition for licensing.
Accordingly, the statute required emergency plans in order to license and,as most recently enacted, it still requires plans be in place in order to license.2 B.
Contrary to Applicant's argument ~, 450.57(a) does require a
" comp 1ete application."
As Applicants correctly point out (Applicants Brief, p.
5),
950.57(a)(1-6) governs the issuance of an operating license.
They acknowledge that pursuant to $50.57(a)(2), the Commission must find that "the facility will operate in conformity with the application as amended...,"
and concede that the " application as amended" presently does not include any emergency plans (State, local, or even utility), for the approximately one-third of the plume exposure EPZ within Massachusetts.
They further acknowledge that 950.33(g) by its terms requires that the Applicant "shall submit radiological emergency response plans of State and local government entities in the United States that are wholly or partially within the plume exposure Emergency Planning Zone (EPZ)."
But, they argue, this no barrier to licensing, because nowhere does 050.57(a) require the application to be " complete."
2.
SAPL would again refer to its January 20, 1987 Brief in Support of Reversal of ALAB-853, pps.
6-7, in which SAPL again pointed out that there is no such thing as a " low power license" or a " fuel loading license."
All the Commission's regulations authorize, and all that the Atomic Energy Act contemplates, are construction permits or forty-year operating iicenses.
It is a forty-year operating license that is at issue in this Appeal.
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However, implicit in the requirement that in order to license a finding must be made that operation will be "in conformity with the application as amended" is the requirement that the application be, in all material respects, complete.
Otherwise, the requirement to find operation will be "in conformity with" the application would be an empty and meaningless gesture, not a required finding in order to license.
If an application ignoring important safety features is not necessary f or licensing, there would be no need to require a finding concerning the ability of the Applicants to operate the f acility "in conformity with" such an application.
It is true that an incomplete license may be docketed, thereby ins t i tut ing f ormal Staf f review. But af ter complet ion of that review, and required hearings on the license, it surely is required that the application be complete in all material respects in order to issue an operating license.3 In Concerned Ci t izens of Rhode Island v. NRC, 430 F.Supp. 627, 10 ERC 1075 (D.R.I.,
1977),
the Court held that an incomplete application could be docketed, but when on to state:
i i
3.
An application perhaps may have some minor, easily remedied omissions and still be the basis of a f avorable 650.57(a)(2) finding.
An Application totally lacking any mention of emergency planning, which the Commission and Congress have determined is an independent required safety feature, has a deficiency that goes beyond a minor and easily remedied deficiency.
l.-
- However, this statutory section [42 USC 62232(a)] does not f orbid the Commission f rom docket ing an incomplete applicat ion, although it may well forbid issuance of a license until the appl ica t ion is compl et e.
See, e. g.,10 CFR 9 2.104 ( b)( 1 )( i )( d). "
Emphasis added, 10 ERC 1075 at 1080, Note 14.
Also, we submit it is significant that the regulation requires a
finding that the plant will operate in conformity with the application "as amended."
One normally refers to amending an incomplete document, and to completing, rather than amending, an incomplete document.
CONCLUSION For the reasons stated in its original Brief, and because the Congress has clearly required this Commission to require emergency plans as a condition for issuing an operating license, including the operating license at issue here, the decision under review, ALAB-853, must be reversed.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By its attorney, BACKUS, MEYER & SOLOMON l
/,
.9 86bert A.
Backus P. O.
Box 516 116 Lowell Street Manchester, N. fl.
03105 Tel: (603) 668-7272 DATE:
February 2, 1987 I hereby certify that a copy of the within Reply Brief of Seacoast Anti-Pollut ion League in Support of Reversal of ALAB-853 has been sent this date, first class, postage prepaid, to those listed on the at tached service lis t and Federal Expressed to those part ies denoted with an as terisk., opposing counsel.
l..A4
,f. -
Robert A.
Backus. _.
Stephen E. Merrill Paul McEachern, Esq.
Attorney General Matthew T. Brock, Esq.**
George Dana 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 Falls 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 i
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.
Harmon & Weiss Assistant Attorney General 2001 S Street, 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 Ascistant General Counsel Civil Defense Director l
Federal Emergency Management Agency Town of Exeter j
500 C Street, SW 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 Gary W. Holmes, Ecq.
Holmes & Ellis 47 Winnacunnet Road Hampton, NH 03842 d
4 Jane Doughty Docketing and Service Section*
Seacoast Anti-Pollution League Office of the Secretary 5 Market Street U.S. 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 Hall - 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 05862 Boston, MA 02110 R. K. Gad III, Esq.
Mrs. Anne E.
Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Sheldon J. Wolfe, Esq., Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board l
U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission i
Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour Ms. Carol Sneider, Esq. **
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 i
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 Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street i
Kensington, NH 03827 Portsmouth, NH 03801 s
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