ML20211G522

Brief in Opposition to Atty General of State of Ma 861016 Appeal from LBP-86-34,authorizing Issuance of OL to Load Fuel & Conduct Precriticality Testing.Certificate of Svc Encl

ML20211G522
Person / Time
Site:	Seabrook
Issue date:	10/24/1986
From:	Perlis R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#486-1306 LBP-86-34, OL-1, NUDOCS 8611040061
Download: ML20211G522 (13)

Text

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UNITED STATES OF AMERICA HUCLEAR REGULATORY COMMISSION

'86 0CT 30 P4 :01 BEFORE Tile ATOMIC SAFETY AND LICENSING APPEAL fBOARD -. _ . ,

DOC:ni . < s:

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In the Matter of )

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. PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL-1 NEW IIAMPSIIIRE, et al.

) 50-444 OL-1

) On-site Emergency Planning (Seabrook Station, Units 1 and 2) ) and Safety Issues NRC STAFF BRIEF IN OPPOSITION TO THE APPEAL OF TiiE ATTORNEY GENERAL OF MASSACIIUSETTS FROM TIIE LICENSING EOARD'S ORDER OF OCTOBER 7,1986 i

Robert G. Perlis I Counsel for NRC Staff October 24, 1986 O

8611040061 861024 PDR ADOCK 05000443 G PDR 3)30 -

DOCKETED U:iNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 86 0CT 30 P4 :01 BEFORE THE ATOMIC SAFETY AND LICENSING APPEALFBOARDr-

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In the Matter of )

)

. PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL-1 NEW IIAMPSHIRE, et al.

) 50-444 OL-1

) On-site Emergency Planning (Seabrook Station, Units 1 and 2) ) and Safety Issues NRC STAFF BRIEF IN OPPOSITION TO THE APPEAL OF THE ATTORNEY GENERAL OF MASSACIIUSETTS FROM TIIE LICENSING BOARD'S ORDER OF OCTOBER 7,1986 Robert G. Perlis CounscI for NRC Staff October 24,198S 1

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10/24/86

~ ~

. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

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

' NEW IIAMPSHIRE, et--

al. ) 50-444 OL-1

) On-site Emergency Planning (Seabrook Station, Units 1 and 2) ) and Safety Issues URC STAFF BRIEF IN OPPOSITION TO THE APPEAL OF TIIE ATTORNEY GENERAL OF MASSACHUSETTS FROM THE LICENSING BOARD'S ORDER OF OCTOBER 7,1986 On October 7, 1986, the. Licensing Board issued. an Order authorizing the issuance of an operating licen'se to load fuel and conduct-precriticality testing at the Seabrook facility. On October 16th, the Attorney General of Massachusetts (" Massachusetts") filed an application for a stay of, and a brief in support of an appeal from, the Licensing Board's Order. On October 17th, the Appeal Board summarily denied the application for a stay, and directed that the Staff and Applicants file briefs in response to Massachusetts' appeal by October 24th if Massachusetts in fact wished to pursue its appeal in the absence of a stay. Massachusetts subsequently orally indicated that it did wish to pursue its appeal. Pursuant to the Appeal Board's direction of October 17th, the Staff submits this brief in response to the appeal and, for the reasons presented below, submits that the appeal should be denied.

E

l I. INTRODUCTION -

On ugust 22,1986, the Applicants in the Seabrook proceeding filed a motion before the Licensing Board pursuant to 10 CFR I 50.57(c) for authorization of an operating license that would allow the Applic<ints to load fuel and conduct precriticality testing at Seabrook in advance of completion of the litigation concerning non-offsite emergency planning issues. -

1I In their motion, Applicants relied upon maintaining a boron concentration over 2000 parts per million (PPM) in the reactor coolant to assure safe operation under the license. The Seacoast Anti-Pollution League filed a response opposing the motion on August 29th; f.'assachusetts filed its opposition on September 3rd. The Staff filed its respense on September 8th, end filed a supplemental affidavit on September 18th; the Staff suppcrted Applicants' motion. On October 7th, the Licensing Board issued LBP-86-34 granting the requested attborization.

Massachusetts filed its stay request anr1 appeal on October 16th. 2_/

In its appeal, Massachusetts does not raise any challenge to the safe operation of the Seabrook facility under the terms of the license, nor 1/ The issues (other than offsite emergency planning ones) remaining before the Licensing Beard deal with the time duration for the environmental qualification of electrical equipment, the acceptability of deferring various additions to' the safety parameter display system until after the first refueling outage, and the acceptability of Applicants' emergency classification scheme. The record before the Licensing Board was closed with respect tc these items on October 3, 1986.

~2/ As noted earlier, the stay request was denied on October 17th. The license to load fuel and conduct precriticality testing was issued on that date.

does biassachusetts allege any potential environmental harm. Instead ,

Massachusetts' sole argument centers around a question of interpretation of two Commission regulations.

The license was issued before resolution of offsite emergency planning issues pursuant to 10 CFR 550.47(d), .which states in pertinent part:

Notwithstanding the requirements of paragraphs (a) and (b) of this section, no NRC or FEMA review, findings, or determinations concerning the state of offsite emergency preparedness or the adequacy of and capability to implement -State and local offsite .

emergency plans are required prior to issuance of an operating license authorizing only fuel loading and/or low power operations (up to 5% of the rated power).. . .

While Massachusetts concedes that this Section precludes a challenge to i

the issued license based upon any allegations of inadequacy in the state of offsite emergency planning for Seabrook, that party contends that offsite plans must nonetheless be submitted to the NRC before any operating license, including one limited to less than 5% of rated power, may be issued. Appeal at 8. The basis for this assertion is 10 CFR 550.33(g). Section 50.33 delineates the general contents of applications for licenses; Section 50.33(g) reads in pertinent part:

If the application is for an operating license for a nuclear power reactor, the applicant shall submit radiological emergency response plans of State and local governmental entities in the the

~ United States that are wholly or partially within the plume exposure pathway [EPZ), as well as the plans of state governments wholly or partially within the ir' estion

pathway EPZ.... [ Footnotes omitted]

It is uncontroverted that offsite emergency plans for that portion of the Seabrook EPZ located in the Commonwealth of-Massachusetts have not yet been submitte:i to the NRC. Under these circumstances, according to l

~

i Massachusetts, no license mer be issued. For the reasons presented

( below, the Staff disagrees.

l 1

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II. ARGUMENT In addressing Massachusetts' appeal, it is well to remember what is not involved. Massachusetts does not (and could not) contend that the

, failure to submit plans prior to issuance of a fuel load and precriticality testing license raises any safety questions. Section 50.47(d) specifically states that no review or approval of offsite plans is necessary before power operation above 5% of rated power. The basis for Section 50.47(d) was made quite plain by the Commission when the regulation was adopted:

at power levels below 5% of rated power, there is simply no need for any offsite emergency plans in order to protect the public health and safety.

See 47 Fed. Reg. 30232 et seq. (July 13, 1982) (publication of final rule); 4G red. Reg. 61132 g seq. (December 15, 1981) (notice of proposed rulemaking).

Moreover, the Commission made clear in the Shoreham proceeding that a low power license could be issued without regard to speculation as to whether offsite emergency planning problems might serve as a bar to issuance of a full power license. See Long Island Lighting Company (Shoreham Plant, Unit 1), CLI-84-9,19 NRC 1323 (1984); CLI-83-17, 17 NRC 1032 (1983). Under the circumstances, it can scarcely be argued

.that the Commission must engage in speculation as to whether any plans (either by the State and local governments or by the utility) will ever be i submitted. _

The only question raised by Massachusetts is one of regulatory interpretation concerning the interplay of Sections 50.33(g) and 50.47(d). l

, I:ssentially, Massachusetts argues that although the Commission does not require approved offsite emergency plans for operation below 5% of rated

power, the . Commission nonetheless intended that plans be submitted i

before any license could issue. The Staff has reviewed the legislative history of both regulations, and found nothing to support Massachusetts' position.

Section 50.33(g) was adopted by the Commission as part of the changes to the emergency planning regulations occasioned by the accident at Three Mile Island. These changes included drastic revisions to the exirting Appendix E to 10 CFF Part 50, as well as the birth of Section 50.47. b The legislative history of these radical changes to the emergency planning regulations indicates that the final rules were based -

on the Commission's perception that more involved offsite emergency planning was necessary to protect the public health and safety in the event of an -accident. Thus the Commission increased the scope of the plans, and called for FEMA review of the adequacy of the plans. See 45 Fed. Reg. 55402 et seq. (August 19,1980) (Final Rule); see also 44 Fed.

Ecg. 75167 et seq. (December 19, 1979) (Proposed Rule). Although the discussions accompanying the proposed and final rule were lengthy, these discussions centered upon the substantive changes under consideration.

No direct mention was made in the discussions of the addition of Section 50.33(g). Under the circumstances, it seems logical to conclude that Section 50.33(g) was promulgated to assure that, even though offsite plans were the focus of these important new safety regulations, Applicants were responcible for providing these plans to the NRC.'

-3/ Section 50.47 and Appendix E to Part .50 contain the Commission's prescriptive requirements for emergency planning for nuclear power plants.

-G-The 'Co'mnission adopted Section 50.47(d) less than two years after

promulgating the sweeping changes to the emergency planning regulations. As noted above, the basis for the adoption of Section

. 50.47(d) was the Commission's factual determination that offsite emergency planning was simply not needed to protect the public health and safety during low power operations.

Massachusetts telres the position that "the requirement of plan submission is quite distinct from the requirement that findings be made as to the adequacy of such plans." Appeal at 8. As shown above, .the

!l historical development of the two requirements was not distinct at all; Section 50.33(g) was adopted at the same time as the Commission's revised substantive emergency planning regulations. Nor is there any reason to assume that the regulations were intended to operate separately. There is nothing in either the legislative history or Commission precedent which supports a conclusion that the Commission intended plans to be submitted when (as during low-power operation) they are not needed to protect the public health and safety, or indeed that the Commission intended Section 50.33(g) to accomplish any purpose . other than assuring that the 4

requirements of Section 50.47 and Appendix E were met.

I Massachusetts seems to assume that the Commission mandates that compliance with all regulations be demonstrated before any operation can be authorized. Contrary to this assumption, the Commission in the Shoreham proceeding specifically rejected the proposition that "every health and safety regulation, regardless of its purpose or terms, must be

. deemed fully applicable to fuel loading and to every phase of low-power operation . . . . " CLI-84-21, 20 NRC 1437,1440 (1984). In the Shoreham i

decision, the Commission determined that GDC 17 U was not applicable to '

fuel loading and precritical and cold critical testing because under no circumstances at such power levels would AC power be needed to protect

, the public health and safety. 20 NRC at 1439. Applying that logic to the facts of this case, Section 50.33(g) would be similarly inapplicable to fuel loading and precriticality testing activities since it is uncontroverted that offsite plans are not needed to protect the public health and safety before operation above 5% of rated power.

Other than pointing to the language of Section 50.33(g), the only basis Massachusetts provides for its position is a decision by the Licensing Board in the Shoreham proceeding. See LBP-83-22,17 NRC 608 (1983). But that decision does not support the proposition that offsite emergency plans must be submitted before a low-power license may issue.

In LBP-83-22, the Licensing Board determined that a license applicant was required to submit offsite plans prepared by governments in order to receive ' a full-power operating license, but further determined that the failure to submit such plers could be mitigated pursuant to 10 CFR Section 50.47(c)(1). 5_/ 17 NRC et 620-627. Applying that rationale to the issuance of a license to load fuel and conduct precriticality testing, no mitigation would be necessary, because for operation at power levels

~4/ GDC 17 establishes requirements for the onsite and offsite electric power supplies at nuclear power plants.

. -5/ Section 50.47(c)(1) provides that where an applicant fails to meet the substantive emergency planning requirements of Section 50.47(b), the applicant will be given an opportunity to demonstrate

. that the deficiencies are not significant for the plant in question, that adequate interim compensating measures have been taken, or that other compelling reasons exist to permit plant operation.

below ~ 5% of rated power, no offsite emergency planning is necessary. 7 See 10 CFR ISO.47(d).

Massachusetts advances in its appeal the proposition that, despite the fact that offsite emergency planning has no safety significance for operation at power levels of below 5% of rated power, . the submittal of such plans is nonetheless required before a license to load fuel and conduct precriticality testing can be issued. There is no indication that euch a result was contemplated when Sections 50.33(g) and 50.47(d) were promulgated, and logie and Commission precedents seem to strongly suggest tbc contrary. The appeal should therefore be denied.

III. CONCLUSION For the reasons presented above, the Staff submits that Massachusetts' appeal from the Licensing Doard's Order authorizing issuance of a license to load fuel and conduct precriticality testing at Seabrook should be denied.

Respectfully submitted, j ,

Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 24th day of October,1986 8

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DCCHETED USHPC T

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ~86 0CT 30 P4 :01 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD [0C 'hf'A=h.[]

er a s In the Matter of )

)

. PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL-1 NEW HAMPSFIRE, et al.

) 50-444 OL-1

) On-site Emergency Planning (Seabrcok Station, Units 1 and 2) ) and Safety Issues CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO ,

l THE APPEAL OF THE ATTORNEY GENERAL OF MASSACHUSETTS FROM TIIE LICENSING BOARD'S ORDER OF OCTCBER 7,1986" in the above-captioned proceeding have been served on the following by deposit 5

in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 24th day of October,1986.

Sheldon J. Wolfe, 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 Washington, D.C. 20555 Washington, D.C. -20555 Dr. Jerry Harbour

• Carol Sneider Administrative Judge Assistant Attorney General l Atomic Safety and Licensing Board Office of the Attorney General j U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor j Washington, D.C. 20555 Boston, MA 02108 Beverly IIollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General y Hampton, NH 03842 George Dana Bisbee Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street RFD 1 Box 1154 - Concord, NH 03301-6397 Kensington, NH' 03827

. Judith II. Mizner, ESq. i

, Richard. A. Hampe, Esq. Silverglate, Gertner, Baker

New Hampshire Civil Defense Agency Fine and Good 107 Pleasant Street 88 Broad Street Concord, NH 03301 Boston, MA 02110 4

4

Calvin 'A.',Canney, City Manager A!!cn Lampert City Hall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman f

. Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Charles P. Graham, Esq.

President and Chief Executive Officer McKay, Murphy and Graham Public Service Co. of New Hampshire 100 Main Street P.O. Pcx 330 Amesbury, MA 01913 Manchester, NH 03105 Diane Curran, Esq.

j Robert A. Backus, Esq. Harmon & Weiss Dackus, Meyer a Solomon 2001 S Street, N.W.

116 Lowell: Street Suite 430 Manchester, NH 03106 Washington, D.C. 20009 Edward A. Thomas Philip ' Ahrens, Esq.

Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (PCCH) Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq. Thomas G. Dignan, Jr. , Esq.

Assistant General Counsel Ropes a Gray.

Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110 Washington, D.C. 20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board

• 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, D.C. 20555 Atomic Safety and Licensing Paul McEachern, Esq.

Appeal Panel

• Matthew T. Brock, Esq.

U.S. Nuclear Regulatory Commission Shaines a McEachern Washington, D.C. 20555 25 Maplewood Avenue _

P.O. Box 360 Portsmouth, NH 03801

Docheting~ arid Service Section* William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C. 20555 10 Front Street Exeter, NH 03833 Maynard L. Young, Chairman

. Board of Selectmen Peter J. Matthews, Mayor 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectment South Hampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 R. K. Gad III, Esq. Gary W. Holmes, Esq. 1 Ropes a Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 02110 Hampton, NH 03842 Robert G. Perlis .

Counsel for NRC Staff 4

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