ML20212R649
| ML20212R649 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/26/1987 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2313 ALAB-853, OL-1, NUDOCS 8702030023 | |
| Download: ML20212R649 (18) | |
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2 313 ,
CCCYETED USNAr
. Dated: January 26, 1987 UNITED STATES OF AMERICA e-before the NUCLEAR REGULATORY COMMISSION l
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i In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al. ) S0-444-OL-1
) 'l (Seabrook Station, Units 1 and 2) ) (Onsite Emergency Planning
) and Safety Issues)
)
l ON REVIEW SUA SPONTE BY THE COMMISSION OF A DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD (ALAB-853) ISSUED NOVEMBER 20, 1986 DENYING AN APPEAL OF THE DECISION OF THE ATOMIC SAFETY AND LICENSING BOARD GRANTING APPLICANTS' MOTION FOR AUTHORIZATION TO ISSUE LICENSE TO
- CONDUCT FUEL LOAD AND PRECRITICALITY TESTING l
- BRIEF OF APPLICANTS l
Thomas G. Dignan, Jr.
R. K. Gad III Kathryn A. Selleck
! Ropes & Gray 225 Franklin Street Boston, MA 02110 t Counsel for Applicants
.l n702030023 B70126 n gDR ADOCK 05000443 [)SCO
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A UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION
) '
In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al. ) 50-444-OL-1
)
(Seabrook Station, Units 1 and 2) ) (Onsite Emergency Planning
) and Safety Issues) -
)
ON REVIEW SUA SPONTE BY THE COMMISSION OF A DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD (ALAB-853) ISSUED NOVEMBER 20, 1986 DENYING AN APPEAL OF THE DECISION OF THE ATOMIC SAFETY AND LICENSING BOARD GRANTING APPLICANTS' MOTION FOR AUTHORIZATION TO ISSUE LICENSE TO CONDUCT FUEL LOAD AND PRECRITICALITY TESTING BRIEF OF APPLICANTS STATEMENT OF PRIOR PROCEEDINGS AND FACTS Under date of August 22, 1986, the Applicants herein filed a motion with the presiding Atomic Safety and Licensing Board for the issuance, pursuant to 10 CFR
$ 50.57(c), of a decision authorizing the issuance by the Director of Nuclear Reactor Regulation of an operating license which would permit the loading of fuel into Seabrook Unit No. 1 and the conduct of precriticality tests. On October 7, 1986, the Licensing Board grantad the motion, and, in due course, an operating license was issued permitting the conduct of fuel loading and precriticality testing.
On October 16, 1986, the Attorney General of The Commonwealth of Massachusetts (MASS AG) appealed the decision to the Atomic Safety and Licensing Appeal Board.
The appeal raised a single question of law, viz., whether 10
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CFR $ 50.33(g) is to be read as requiring utility applicants for operating licenses to file a radiological emergency response plan for the entire plume exposure pathway emergency planning zone (EPZ) for the facility before any operating license, including licenses limiting authority to the loading of fuel, precriticality testing, and low power (up to 5% of rated power) operation could issue.
On November 20, 1986, the Appeal Board issued the decision here on review denying MASS AG's appeal. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-853, NRC (Nov. 20, 1986) (Hereafter "ALAB-853" and cited to the slip opinion). On January 9, 1987, the Commission issued an order stating that it had decided to review ALAB-853, sua sponte, in order to consider a single issue, which is set forth below. In that same order the Commission set forth a " permissive" briefing schedule which called for briefs from parties advocating l
l revision of ALAB-853 by January 21, 1987, followed by I responses to such briefs by parties advocating upholding ALAB-853 by January 27, 1987 and replies thereto by those advocating revision by February 3, 1987.
A total of four briefs have been filed advocating revision of ALAB-853 by MASS AG, Town of Hampton (TOH),
Seacoast Anti-Pollution League (SAPL), and the'New England Coalition on Nuclear Pollution (NECNP). Herein the Applicants respond to these filings.
-l QUESTION PRESENTED The single issue which the Commission has taken review to consider is: "whether as a matter of law or policy a utility applicant should be required to submit a radiological emergency response plan (either a governmental I plan or a utility plan) for the entire emergency planning zone (EPZ) for the facility before any operating license may issue?"
ARGUMENT I. As a Matter of Law No Requirement to Submit a Radiological Emergency Response Plan Exists
- Introduction i
- Stripped to its essentials, we understand the major argument of those seeking revision of ALAB-853 to be as follows: 10 CFR 6 50.33(g) requires submission of an emergency plan for governmental entities located in nuclear i
power plant emergency planning zones (EPZs); while other i
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6 parts of the regulations, (10 CFR $ 50.47(d)), allow issuance of a license authorizing fuel loading, 1
precriticality testing and low power operation absent a determination that a submitted plan is appropriate, there is no relief from the requirements of 10 CFR $ 50.33(g) that some plan be submitted. Thus, say the proponents of this argument, since there is no plan of any kind yet submitted for the Massachusetts portion of the Seabrook EPZ, no authorization for fuel load, precriticality testing and low power operation may be given. ~
A. Compliance With CFR $ 50.33(g) Is Not a Prerequisite to Issuance of An Operating License To begin with, the argument is premised on a misunderstanding as to what must be shown for issuance of any operating license. The necessary findings which constitute prerequisites to the issuance of an operating license are spelled out in 10 CFR $$ 50.57(a)(1)-(6) which reads as follows:
"(1) Construction of the facility has been substantially completed, in conformity with the construction permit and the application as amended, the provision of the Act, and the rules and i
regulations of the Commission; and (2) The facility will operate in conformity with the application as amended, the provisions of the Act, and the rules and regulations of the Commission; and
- (3) There is a reasonable assurance (1) that the activities authorized by the I
O operating license can be conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the regulations in this chapter; and (4) The applicant is technically and financially qualified to engage in the activities authorized by the operating--- -
license in accordance with the regulations in this chapter. However,,no finding of financial qualification is necessary for an electric utility applicant for an operating license for a utilization facility of the type described in 5 50.21(b) or 5 50.22; and (5)
The applicable provisions of Part 140 of this chapter have been satisfied; and (6) The issuance of the license will not be inimical to the common defense and security or to the health and safety of the public."
Singularly absent from this list is a requirement that the
" application be complete". Construction must be "substantially completed in conformity with . . . the application as amended"; 10 CFR 5 50.57(a)(1); Seabrook Unit No. 1 is. It must be found that "the facility will operate in conformity with the application as amended"; Seabrook Unit No. 1 will.
In short, the only findings concerning the application, i.e. construction and operation in accord with it, can be made even if the application is wholly incomplete. This should surprise no one because the " teeth" of the regulation is that the facility must be built, and capable of operating, in accord with the Commission's regulations. The 4
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O provision for a finding as to conformity with the application is to assure the enforceability of commitments to standards in excess of those required by the regulations.
Simple " completeness" of the application is not a licensing standard. Inceed, it could never be because the FSAR part of an application continues to change even after licensing.
See 10 CFR 5 50.71(e). As the Appeal Board noted, ALAB-853 at 7, an applic.ttion for an operating license is a "living, breathing document."
To be sure, the provisions of 10 CFR $ 50.33 do guide the Staff in deciding whether an operating license application is sufficiently complete to permit its being docketed. See 10 CFR 5 2.101(a)(2). But full compliance with them does not govern the question of whether a given authorization to operate may be granted.1 Indeed, as this Commission has observed, not all regulations must be complied with for an authorization for low power operation to issue. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC 1437, 1440 (1984).
Thus, the major premise of the argument, i.e. that a finding of compliance with 10 CFR $ 50.33(g) is a prerequisite to the issuance of an operating license is in error.
1 In a construction permit proceeding it must be found that the ecnstruction permit application does have a certain degree of completeness. See 10 CFR $ 50.35(a).
B. That Compliance With 10 CFR 5 50.33(g) is Not a Prerequisite To Granting Authority For the Issuance of a License Allowing Fuel Load and Precriticality Testing is Clear From the Language of 10 CFR 6 50.47(d)
Those seeking revision of ALAB-853 assert that the Shoreham decisions stand only for the proposition that a
" low power" license may issue if there is some offsite plan submitted (i.e., a utility plan is sufficient). From this premise they argue that a different result is called for in Seabrook than in Shoreham because no plan has been submitted for the Massachusetts portion of the EPZ.
To begin with, this argument ignores the actual language of 10 CFR $ 50.33(g). That section reads, in material part, as follows:
"(g) 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 government 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 wholly or partially within the ingestion pathway EPZ." (Footnotes omitted.)
There is nothing in the above-quoted language which allows for submission of anything but " State and local government entity" plans. Nothing is said about other plans. In the very case upon which those seeking revision of ALAB-853 rely, the Licensing Board noted that 10 CFR
$ 50.33(g) " read in isolation requires the filing of an o
offsite emergency plan sponsored by the appropriate local government". Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 620, affirmed, CLI-83-13, 17 NRC 741 (1983). However, that Board went on to review the history of 10 CFR 5 50.47(c)(1) and concludedthatthatsectionshouldbereadasrejechingthe concept that 10 CFR 5 50.33(g) was an absolute bar to issuance of an operating license absent a governmentally sponsored offsite plan.
Just as 10 CFR 5 50.47(c)(1) obviates the need for -
governmentally sponsored plans, 10 CFR $ 50.47(d) obviates the need for any offsite emergency plans to be in existence at all prior to issuance of an operating license for operation up to 5% of rated power. Those arguing for revision seek to avoid the logic of this position by characterizing 10 CFR $ 50.47(d) as a regulation that:
" obviates only the requirement set forth '
in 65 50.47(a) and (b) that ' review, findings or determinations' be made concerning the adequacy of offsite emergency plans. It does not obviate the requirement that such plans be submitted as part of the Section 50.33 application process". Mass AG Br. at 8 (emphases in original). See also NECNP Br. at 6.
This characterization ignores the actual language of the regulation. What is obviated is not only the need for NRC or FEMA " review, findings or determinations concerning . . .
the adequacy of . . . offsite emergency response plans", but also of " review, findings or determinations concerning the o
state of offsite emergency preparedness" (emphasis added) (a phrase set off in the disjunctive from "the adequacy of . . . emergency response plans"). If there is no need for NRC review of "the state of offsite emergency preparedness" before a low power license is issued, it follows as night follows day that there is no need for something called " Massachusetts Plan" to have been
" submitted". It is for this reason that the Commission has properly characterized the right to receive a low power license under 10 CFR 5 50.47(d) to be " unqualified", Long -
Island Lighting Company (Shoreham Nuclear Power Station),
CLI-85-1, 21 NRC 275, 278 (1985), in circumstances such as exist here.
C. ALAB-853 Does Not Constitute an Impermissible Amendment to a Regulation TOH argues in its brief that ALAB-853 represents either an unauthorized collateral attack upon, or an impermissible amendment of, an NRC regulation viz. 10 CFR $ 50.33(g). TOH i
Br. 11 3-5. ALAB-853 is no more or less than an interpretation of a regulation which is what virtually every i
adjudicatory decision in NRC jurisprudence is in whole or in part. To argue that because a Board disagrees with one's interpretation of a regulation, the Board has worked an amendment or engaged in collateral attack on the regulation adds nothing to the force of the rejected argument, l
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O D. There is No Basis For the Argument That ALAB-853 Renders 10 CFR 50.33(g) a Nullity NECNP urges a somewhat imaginative argument upon the Commission not argued below, but see 10 CFR
$ 2.786(b)(4)(iii), to the effect that the Appeal Board's interpretation of the regulations renders 10 CFR I 50.33(g) a nullity. NECNP Br_._ 4-7. The argument as that 10 CFR 5 50.33(g) can have meaning only in the low power context, because in a full power setting, 10 CFR $ 50.47(a) & (b)
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operate to require the existence of emergency plans. The argument, admittedly clever, founders on one fact. Section 50.33(g) of 10 CFR was inserted into the regulations at the same time that 10 CFR $ 50.47(a)-(c) were adopted, 45 Fed.
Reg. 55,402 (Aug. 19, 1980). Section 50.47(d) was adopted almost two years later. 47 Fed. Peg. 30 232 (July 13, 1982). The logic of NECNP's argument is that during the two years prior to adoption of 10 CFR 5 50.47(d), l 50.33(g) had no utility whatsoever because $ 50.47(d) did not exist and thus no exemption for low power (up to 5% of rated power) testing existed either. With this analysis, the argument falls.
II. As a Matter of Policy, ALAB-853 Is Sound Before getting into any balancing of policies it is perhaps most relevant to point out one matter which the Briefs in Opposition wholly ignore. Had the Appeal Board decided this matter against the Applicants, or if this
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O Commission should now interpret 10 CFR $ 50.33(g) as our opponents urge, the fact is that the Applicants could simply file a " Massachusetts Plan" the next day and any barrier to continued precriticality testing or, indeed, low power operation arising out of the matters here on review would _ _
disappear. Accepting the admonition that such a filing would have to be a " good faith effort", the fact is, as became fully apparent at the oral argument before the Appeal Board, see Tr. (Oct. 31, 1986) 49-52, 65-66, there is in
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existence a draft of a plan for The Commonwealth of Massachusetts. Such draft has undergone informal FEMA review. The filing of a requisite number of copies would satisfy 10 CFR l 50.33(g) beyond question. It is in this framework that policy must be discussed.
The seekers of revision of ALAB-853 assert that no policy is served by allowing low power testing of Seabrook at this juncture because, they argue, full power authorization is a long time away. This argument has been previously considered and rejected by this Commission. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1)
CLI-85-21, 21 NRC 1587, 1590-91 (1985). As the Commission therein stated:
"The primary benefit of early low-power operation is that it will allow the early discovery and correction of unforeseen but possible problems which may prevent or delay full-power operation at an enormous expense to LILCO and/or its customers. Thus, early low-power testing 12 -
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greatly increases the possibility that if and when the plant is ready for full-power operation, the benefits of that operation will be realized without delay. This benefit does not require specualtion over the outcome of the full-power proceeding. So long as an applicant is willing to invest the substantial effort and money necessary to ~~
attempt to obtain a full-power license, the possibility of full-power operation at a future date gives substantial value to low-power testing. Moreover, whenever a low-power motion has been filed where full-power issues are also pending (a common occurrence), there is always uncertainty over the outcome of the full-power proceeding. Delaying the ,
low-power license until that uncertainty is eliminated irretrievably deprives the applicant and its customers of the substantial benefits of early low-power testing.
To refuse to authorize low-power operation whenever there is uncertainty over whether full-power operation will be authorized would ignore Commission regulations which allow low-power operation when there is reasonable assurance that it will present no undue risk to the public health and safety notwithstanding the pendency of full-power issues. 10 CER $ 50.57(c).
This regulation is premised on the idea that the inherent benefits of early low-power testing outweigh the uncertainty that a full-power license may be denied. We see no reason to refuse to recognize this premise in this case. In short, the sooner low-power testing is begun, the greater the probability that it will serve the purpose for which it is intended, i.e., to facilitate the earliest possible full-power operation of the plant in the event that the Commission finds reasonable assurance that full-power operation will present no undue risk to the public health and safety." (Footnote omitted.)
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'e s In short, good policy dictates permitting a utility to learn as soon as possible about any major difficulties that might
exist with respect to the facility. (See, id., at n.3 where reference is made to the to the need for one year to fix x problems discovered during low power testing at Palo Verde).
7.11 In short, the policy considerations may be summed up s thus: reversal of ALAB-853 means that 60 or 70 copies of the extant Massachusetts Energy Plan for Seabrook will have to be made and an appropriate number forwarded to NRC and ,
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the parties before low power testing can commence. An r. ,
affirmation of ALAB-853 will avoid that waste of paper. If the Commission is being urged as a matter of policy simply to do away with the right to low power testing until a plan is approved for Massachusetts or the EPZ is reduced and the ,
Massachusetts problem is thereby eliminated, that " policy 3 a
s change" will require repeal (after rulemaking) of 10 CFR
$ 50.47(d), and will delay necessary and valuable testing which is capable of revealing any faults which might require long periods to rectify.
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I CONCLUSION ALAB-853 should be affirmed.
Respectfully submitted, 2nc//
Thtnttts- G. Digng,- Jr.
R. K. Gad IIr Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 s,
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CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for 1987, the Applicants herein, hereby certify that on January 26, 1 made service of the within document by mailing copies thereof, postage prepaid, to:
Alan S. Rosenthal, Chairman Howard A. Wilbar _
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 West Highway Bethesda, MD 20814 Bethesda, MD 20814 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 Post Office Square Commission Boston, MA 02109 East West Towers Building 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 Fanel Atlantic Avenue North Hampton, NH 03862 U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway j
Bethesda, MD 20814 Diane Curran, Esquire Dr. Emmeth A. Luebke Harmon & Weiss j
l Atomic Safety and Licensing 2001 S Street, N.W.
Board Panel Suite 430 U.E. Nuclear Regulatory Washington, DC 20009 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 1
o 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 Sherwin E. TurET Esquire
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- Atomic Safety and Licensing 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
- Senator Gordon J. Humphrey Mr. Peter S. Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950
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a 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 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 East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 James K. Asselstine, Commissioner Frederick M. Bernthal, U.S. Nuclear Regulatory Commissioner
( Commission U.S. Nuclear Regulatory l East West Towers Building Commission
! 4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD 20814 Kenneth M. Carr, Commissioner U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 T
Thomas G i'cjnan, Jr.
(*= Ordinary U.S. First Class Mail.)
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