ML20211G672
| ML20211G672 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/29/1986 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#486-1315 OL-1, NUDOCS 8611040105 | |
| Download: ML20211G672 (13) | |
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00CMETED USNRC UNITElrSTATES'OF AMERICA NUCLEAR REGULATORY COMMISSION N OCT 30 P3:03 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD (9?., -
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In the Matter.of '[
PUBLIC SERVICE CC$PANY OF Docket Nos.
50-443 OL-1 s
- NEW HAMPSHIRS, et al 50-444 OL-1 On-site Emergency Planning (Seabrook, Station, Units 1 and 2) and Safety Issues 7
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SEACOAST ANT 1-POLI.UTION LEAGUE'S BRIEF IN SUPPORT OF APPEALcOF' LICENSING' BOARD ORDER AUTHORIZING ISSUANCd OF OPERATING LICENSE TO CONDUCT FUEL LOAD
- AND PRECRITICALITY TESTING
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b-l Robert A.
Backus Cc6nsel for SAPL
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j October 29, 1986
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.v UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOWIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUBLIC SERVICE COMPANY OF Docket Nos.
50-443 OL-1 NEW HAMPSHIRE, et al 50-444 OL-1 On-site Emergency Planning (Seabrook Station, Units 1 and 2) and Safety Issues SEACOAST ANTI-POLLUTION LEAGUE'S BRIEF IN SUPPORT OF APPEAL OF LICENSING BOARD ORDER AUTHORIZING ISSUANCE OF OPERATING LICENSE TO CONDUCT FUEL LOAD AND PRECRITICALITY TESTING I.
STATEMENT OF PROCEEDINGS On August 22, 1986, Applicants in this proceeding filed a Motion, pursuant to 10 CFR 650.57(c), for authorization to issue a license to conduct fuel load and preeriticality testing.
The Seacoas t Ant i-Pollution League filed a response opposing the Motion on August 29, 1986.
On September 3, 1986, Attorney General Francis X.
- Bellotti, representing the Commonwealth of Massachusetts, filed his Objection to the Applicant's Motion.
The Nuclear Regulatory Commission Staff filed its response on September 8, and filed a Supplemental Af fidavit on September 18; the Staff supported the Applicant's Motion.
On October 7, 1986, the Licensing Board granted the Applicant 's Mot ion.
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I' See LPB-86-34.
Massachusetts filed its Stay Request and Appeal on October 16, and the Seacoast Anti-Pollution League filed its Notice of Joinder in Appeal on October 21, 1986.
On October 24, 1986, the Appeal Board held a conference call with all parties, pursuant to which this brief is filed this date.
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II.
ARGUMENT A.
THE LICENSING BOARD ERRED IN AUTHORIZING ISSUANCE OF AN OPERATING LICENSE TO CONDUCT FUEL LOAD AND PRECRITICALITY TESTING IN THIS CASE SINCE APPLICANTS HAVE FAILED TO COMPLY WITH THE APPLICATION REQUIREMENTS OF 10 CFR 950.33(g).
1.
10 CFR 650.33(g) requires the submission of state and local governmental emergency response plans prior to the issuance of an operating license.
On August 22, 1986, the Applicants in the Seabrook proceeding filed a motion before the Licensing Board pursuant to 10 CFR 950.57(c) for authorization of an operating license that would allow the Applicants to load fuel and conduct precriticality testing at Seabrook in advance of completion of the litigation concerning on-site emergency planning issues.
10 CFR 650.57(c) is entitled Issuance of Operating License.
As a threshold issue, it is important to note that clearly what the Applicants are seeking is an operating license.
It has become necessary to point out this rather obvious f act because in the proceedings below, and in the NRC Staff Brief, the argument is being made that a no power operating license is somehow dif ferent from all other_ operating licenses and therefore the provisions of 50.33(g) (requiring submission of state and local emergency response plans before issuance of an operat ing license) and 50.47(d) (requiring findings and determinations with regard to the adequacy of on-site emergency plans), somehow do not apply when an Applicant is seeking a no power license as opposed to a low power or full power license. ;
No evidence has been adduced by any of the parties involved that supports this proposition.
If such a distinction had been intended, the regulations would have by their terms made such a distinction, or the regulations would have characterized a license to operate at no power as something other than an operating license. Consequently, if no power operating licenses were intended to be treated dif ferently then low power or full power operating licenses, then the regulations would have explicitly done so.
10 CFR 050.33(g) of the Commission's regulations requires as a part of the application process for an operating license for a nuclear power reactor that
... the Applican t shall submi t radiological emergency response plans of State and local ~ governmental entities in the United States that are wholly or partially within the plume exposure pathway Emergency Planning Zone (EPZ), as well as the plans of state governments wholy or partially within the ingestion pathway EPZ."
The requirements of $50.33(g) are mandatory, not discretionary.
The regulation does not state that-the Applicant may submit radiological emergency response plans, but_instead states that the Applicant "shall submit radiological emergency response plans."
Absent an indication of intent to the contrary, it is a universally accepted rule of statutory interpretation that the word "shall" acts as a command.
Therefore, a literal reading of 650.33(g) indicates that a Radiological Emergency Response Plan must be submi t ted bef ore -
an application for an operating license is deemed complete.
In addition, the Shoreham Licensing Board has stated:.--
[A]n interpretation [ requiring the filing of local government off-site emergency plans only as such plans exist] would be contrary to the plain meaning of Section 50.33(g) and in conflict with the overall regulatory scheme of 10 CFR Part 50, which generally sets forth mandatory requirements for the issuance of a construct ion permi t or an operat ing license.
Indeed, Sect ion 50.33 is entitled
' contents of applications; general information;'
and begins with the general preamble
'Each application shall state:.'
Long Island Lighting Company, (Shoreham Nuclear Power Stat ion, Unit 1), LBP-83-22, 17 NRC 608, 620 (1983).
Finally, the Commission in its Statement of Consideration for the final rule made clear the mandatory nature of the $50.33(g) requirement of plan submission when it stated, "In order to continue operations or to receive an operating license, an applicant / licensee will be required to submit its emergency plans, as well as state and local governmental response plans, to NRC."
45 Fed. Reg. 55402, at 55403, Col. 2 (August 19, 1980).
In the instant case, no of f-site plans at all have been submitted for the six Massachusetts communities within this Seabrook plume exposure pathway EPZ or for the Commonwealth of Massachusetts, and no plans have been submitted which attempt to compensate in any manner for the lack of Massachusetts' state and local plans.
In addition, there is presently pending in the New Hampshire Supreme Court a case challenging the validity of the emergency response plans submitted by the State of New Hampshire on behalf.of several towns in New Hampshire.
See Vernet, et al
- v. Town _of Exeter, et al,86-118.
In such circumstances, the Commission's regulations are clear:
No operating license may be issued until Radiological Emergency Response Plans of state and local governmental ent it ies are submit ted.
As the Commission's regulations do not distinguish between the types of operating licenses with respect to the 450.33(g) requirements for _
submission of emergency response plans, the submission of such. plans is a pre-requisite to the i ssuance of an operating license.
- B.
THE LICENSING BOARD ERRED IN AUTHORIZING ISSUANCE OF AN I
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OPERATING LICENSE TO CONDUCT FUEL LOAD AND PRECRITICALITY TESTING IN THIS CASE WHERE NO FINDINGS HAVE BEEN MADE THAT THE STATE OF ON-SITE EMERGENCY PREPAREDNESS PROVIDES REASONABLE ASSURANCE THAT ADEQUATE PROTECTIVE MEASURES CAN AND WILL BE TAKEN IN THE EVENT OF i
i RADIOLOGICAL EMERGENCY.
i 10 CFR 650.47(d) states in pertinent part that:
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" Insofar as emergency planning and preparedness requirements are concerned, a license authorizing fuel loading and/or low power operation may be issued after a finding ~ is made by the NRC that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
The Licensing Board. erred in authorizing issuance of an operating license to conduct fuel load and precriticality testing in this case 1
because the Board has made no finding that the state of on-site emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken.
The Board's conclusion
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that no such findings have to be made because no party has raised a contention with regard to onsite emergency planning is plainly t
erroneous. The Board has an affirmative responsibility, even apart from the participation-by the parties in this proceeding, to make the requisite findings that the state of onsite preparedness.will be adequate.
Included in the Commission Response to public comment raised-in regard to the rule change which allowed fuel loading and low power-i
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operat ion up to 5% o f rat ed power, the Commission stated very clearly that:
Prior to issuing an operating license authorizing low-power testing and fuel loading, the NRC wi l l review the following offsite elements of the applicant's emergency plan.
(emphasis added) 47 Fed. Reg. 30232, at 30234.
Thus, the Board must even make findings as to relevant offsite issues regarding the applicant's plan.
It has not done so.
In concluding its response with regard to the above, the Commission went on tc state that:
Knowing that the above elements of the applicants emergency plan have been reviewed by NRC should assure the public that, for low-power testing and fuel loading, adequate protective measures could and would be taken in the event of an accident. M.
As a threshold issue, the Board's argument in its Order of October 7,1986, LPB-86-34, appears to hold that since the applicat ion is being made pursuant to 950.57(c), that 950.47(d) and 050.33(g) need not be considered.
This is an erroneous conclusion.
The fact that an application is being brought pursuant to one regulation does not negate the effectiveness or the applicability of other regulations. Neither the Board not the Applicant can pick and choose which regulations will apply at their convenience.
All of the regulations were adopted pursuant to the same regulatory scheme and wi th -the same regulatory goals in mind. -Consequently, unless speci fic regulations are excluded, all regulations are relevant provided they address the subject matter of the appl.ication.
By-its very terms, 050.47(d) applies to licenses authorizing fuel loading and/or low power operation.
It is uncontroverted that the license sought by the Applicant is a license to authorize fuel loading.
1 Even if the Board were correct in concluding that $50.57(c) should be read in isolation from the other regulations, SAPL did raise an issue that is relevant to the activity to be authorized.
1 SAPL's Supplemental Contention No. 6 dealt with both the' Detailed Control Room Design Review at Seabrook and the Safety Parameter Display System, the former of which SAPL holds is directly relevant to the issue of onsite safety.
The Board, summarily disposed of that part of SAPL's Supplemental Contention No. 6 which dealt with the detailed control room design. review and human eng'ineering j
discrepancies.
The action by the Board here under appeal deprives SAPL of the right to seek redress at the appropriate point in future of the denial of hearing on this issue which did have relevance tothe loading of fuel in the reactor at Seabrook.
Cont rary to the Board's assertion, therefore, there is an issue which remains for ultimate decision pursuant to 10 CFR 650.57(c).
C.
THE LICENSING BOARD ERRED IN AUTHORIZING ISSUANCE OF AN OPERATING LICENSE TO CONDUCT FUEL LOADING AND PRECRITICALITY TESTING IN THIS CASE BECAUSE THERE IS NO GUARANTEE THAT A CRITICALITY WILL NOT OCCUR.
Even though the Applicants have taken steps to prevent an inadvertent criticality, the Applicant has not proved that an inadvertent criticality could not occur.
If such inadvertent criticality did occur, SAPL's due process rights to meaningful review of the on-site safety issues litigated by the parties before the Licensing Board in October would be seriously impaired.
Although the Applicants have stated that they are going to take various precautions, the probability that an. inadvertent criticality could 0
e occur is by no means nil. Applicants claim that by keeping the water in the reactor coolant system borated at a level of 2,000 ppm, there would be no possibility of an accidental criticality.
SAPL would agree that if that boron concentration is indeed maintained at that
- level, there would not be a criticality.
- However, there are circumstances that could occur that might lead to a criticality.
For example, PSNH has not yet submitted the results of its leakage rate measurements necessary for the determination that the leakage rate program for Seabrook Station has been implemented successfully
- and, indeed there is a condition that has been attached to the Operating License that Applicants submit leakage rate measurements before proceeding above 5% of rated power.
Leakage in the reactor coolant system could have an effect upon PSNH's ability to maintain i
boron concentration at the level specified in its motions since water would need to be added to the ' system.
It is entirely possible, through an analytical error, that water that is not sufficiently borated could be added and could dilute the boron concentration below the level necessary to prevent criticality.
Though this is not a high likelihood event, it is by no means impossible for this kind of an accidental dillution to occur.
Additionally, there is also the potential that some disgruntled employee or other individual might deliberately seek to dilute the concentration of boron in the reactor coolant system through deliberate defeat of the safety and control systems that have been added (such as the chaining of valves, etc.)
Although this possibility might again be considered remote, it has occurred in the past; in a Pennsylvania nuclear plant, a -disgruntled
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employee did attempt to sabotage the proper operation of a valve by chaining it.
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CONCLUSION l
In conclusion, f or the above-s tated reasons, the Board's order authorizing issuance of an operating license to conduct fuel load and precriticality testing should be reversed and vacated.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By its attorney, BACKUS, MEYER & SOLG10N
/ WK N 6Eit A.
Backus P. O.
Box 516 116 Lowell Street Manchester, N.H.
03105 Tel: (603) 668-7272 DATE:
October 29, 1986 I hereby cer t i f y tha t a copy of.the wi thin SEACOAST ANTI-POLLUTION LEAGUE'S BRIEF IN SUPPORT OF APPEAL OF LICENSING BOARD ORDER AUTHORIZING ISSUANCE OF OPERATING LICENSE TO CONDUCT FUEL LOAD AND PRECRITICALITY TESTING has been sent this date, Federal Express to-those indicated by an
- on the attached service list, and first class, postage prepaid to other parties on the service list.
I Ifdtie r t A.
Bac'kus -
CERTIFICATE OF SERVICE AND SERVICE LIST Jose Asst.Gn.Cnsl.
Sheldon J. Wolfe, Chrm."
Thgg'& Gray t
Fed. ph Flynndgmt. Agcy.
Admn. Judge Dignan, Esq.+
Emerg.
Ropeh 500 C.St. So. West Atomic Safety & Lic Brd.
225 Franklin St.
Washington, DC 20472 USNRC gBgg, p70$2110 Washington, DC 20555 Office of Selectmen Dr. Jerry Harbour #
Gff $pfke51}ig,% Serv. 'Sec.
- Town of Hampton Falls Admin. Judge 00C0Tli"pbof the Secretary '
Hampton Falls, NH 03844 Atomic Safety & Lic Brd.
USNRC USNRC Washington, DC 20555 Washington, DC 20555 Shenvin E. Turk, Esq.
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USNRC Admin Judge.
N Atomic Safety & Lic. Brd.
5 Market. Street Wahsington, DC 205 _
USNRC Portsmouth, NH 03801 Washington, DC 20555 Phillip Ahrens, Esq.
Paul McEachern, Esq.
George Dana Bisbee, Esq.
Asst. Atty. General Matthew Brock, Esq.
Attorney General's OFF.
State House, Sta. #6 25 Maplewood Ase.
State.of New Hampshire.
Augusta, ME 04333 P.O. Box 360 Concord, NH 03301 Portsnouth, NH 03801 Carol Sneider, Esq., Asst.AG
- Diane Curran, Esq.
William S. Iord One Ashburton Place, Harmon, Weiss Board of Selectmen 19th Floor 20001 S Street NW Suite 430
-Town Hall-Friend St.
Boston, MA 02108 Washingcon, DC 20009 Amesbury, MA 01913 Richard A. Hampe, Esq.
Maynard Young, Chainmn Sandra Gauvutis New Hampshire Civil Defense Board of Selectmen Town of Kingston Agency 10 Central Road Box 1154 Hampe & McNicholas Rye, NH 03870 East Kensington, NH 03827 35 Pleasant St.
Concord, NH 03301 A]nn Rosenthal, G airman M Edwnrd Blomas Mr.' Robert Harrison Atomic Safety & Lic. Appeal FEMA
- Pres. & Chief Exec. Officer Board 442 J.W. McConnack (POCH)
PSCO US. NRC Boston, MA 02109 P.O. Box 330 Washington, DC 20555 M nchester, NH - 03105 Gary Edles
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Roberta Pevear Atomic Safety & Licensing State Rep.-Town of Hanpt Falls Appecl Board Drinkwater Road U.S.NRC Hanpton Falls, NH 03844 Washingcen, I:C 20555 Hcunrd A. Wilber
'Y Atomic Safety & Licensing Appeal Eoard
-U.S. NRC 9
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