ML20212R680

NRC Staff Response in Accordance with ASLB Order of 870107 Re Applicant Petition for Waiver from Emergency Planning Regulations.* Recommends Establishment of Separate Licensing Board to Consider Subj Petition.Certificate of Svc Encl

ML20212R680
Person / Time
Site:	Seabrook
Issue date:	01/28/1987
From:	Perlis R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2357 OL, NUDOCS 8702030041
Download: ML20212R680 (7)

Text

T 2367 01/28/87

% DOCKETED UNC UNITED STATES OF AffERICA

- NUCLEAR REGULATORY COP!P.IISSION'87 JAN 30 P4 :20 BFFORE TIIE ATOMIC SAFETY AND LICENSINb7 BOARD In the Matter of )

) Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW IIAMPSHIRE, et al. ) Off-site Emergency Planning

)

(Seabrook Station, Units 1 and 2 )

NRC STAFF RESPONSE IN ACCORDANCE WITH TIIE LICENSING BOARD'S ORDER OF .TANUARY 7,1987 CONCERNING APPLICANTS' PETITION FOR A 1 WAIVER FROff EMERGENCY PLANNING REGULATIONS I. INTRODUCTION On December 18, 1986, the Applicants in this proceeding filed, pursuant to 10 CFR 52.758, a petition for a waiver from those regulations that require the establishment of a ten-mile plume exposure emergency planning zone (EPZ) for the Scabrook facility. II Instead of a ten-mile zone, the Applicants specifically requested that a one-mile EPZ be established for Seabrook. In support of their petiticn, Applicants submitted, inter alia, two probabilistic analyses, numerous affidavits, and a legal memorandum to demonstrate that a one-mile EPZ for Seabrook would satisfy the standards of Section 2.758.

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-1/ The principal regulation establishing a ten-mile EPZ is Section 50.47(c)(2). In addition, the Applicants specifically requested a waiver from the relevant portions of 55 50.33(g), 50.54(s)(1), and i

Appendix E to Part 50.

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i s On December 23, 1986, the Licensing Board directed that responses to Applicants' petition be filed by January 27, 1087. In response to petitions for reconsideretion of this schedule filed by a number of intervenors and the Staff, the Board on January 7, 1987 reaffirmed its order that responses be filed by January 27th. In so doing, the Board provided that if parties could not complete their responses by January 27th, they should file partial responses and advise the Board of when responses could be completed. (Order of January 7,1987 at 3). In its later order, the Board also outlined the nature of the responses it was seeking from parties; the Board called for filings to address not the merits of Applicants' petition, but only whether a prima facie showing had been made. (Id.) The Poard further defined " prima facle" to mean

" evidence of a sufficien* nature that would cause reasonable minds to inquire further." (Id.)

Using the definition of " prima facie" propounded by the Licensing Board in its Order of January 7th, the Staff would conclude that the l Applicants have submitted sufficient information to " warrant reasonable minds to inquire further" and thus have satisfied the the standard set by the Board.

The Staff does not agree, however, that the standard propounded by the Board is the one contemplated by Section 2.758. The Staff believes instead that the " substantial evidence" standard applied by the i

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1 r s Licensing Board in the Shearon Harris case2 _/ (cited by the Board in its -

January 7th order) is the appropriate standard. Application of this more '

- exacting standard allows a licensing board to more adequately screen I waiver petitions and certify to the Commission only those petitions worthy of final Commission review. If, on the other hand, the standard set forth in the January 7th order is used , the Commission will not be provided with a sufficient record to reach a well-founded conclusion as to whether or not application of the 10-mile EPZ requirement ought to be waived in this proceeding, nor will the Commission be given sufficient information to determine whether an alternate EPZ size is acceptable.

The Applicants' petition raises a number of complex and novel issues. In order to succeed in its petition for a waiver, the Applicants ,

must address the purposes for which the 10-mile EPZ was developed, and demonstrate that application of the rule to Seabrook would not serve those purposes. Applicants in their petition have attempted to demonstrate, based on a number of probabilistic analyses, that a one-mile EPZ is an s

! 2/ Carolina Power & Light Company (Shearon Harris Plant), LB P-85-5,

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21 NRC 410 (1985). The " substantial evidence" standard is supported by other NRC case law. See, e. .,

Pacific Gas & Electric Co. (Diablo Canyon Plant , Units 1 an ,

ALAB-653, 16 NRC 55, 72 (1981) (" prima facie evidence must be Icgally sufficient to establish a fact or case unless disproved");

Ilouston Lighting and Power Co. (South Texas Project, Units 1 and 1 2), LBP-83-49, 18 NRC 239, 240 (1983) (tc support a waiver

! petition, petitioner must present persuasive evidence rether than l

bare allegations); Metropolitan Edison Co. , (Three IU11e Island l

Station , Unit No. 1), Lh P-80-1, 11 NRC 37, 39 (Licensing Board found intervenor had made a p_ rima facie case for waiver and fotnd licensee to be in " default" for failing to address merits of waiver l

petition), reversed on other grounds, CLI-80-16, 11 NRC 674-75 i (1980) (Commission determined that issue raised in petition was generic and instituted a generic rulemaking proceeding).

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, e acceptable alternative et Seabrook. The Licensing Board's standard does not appear to call for (and th(schedule adopted by the Boards does not \

allow for) detailed technical responses from the parties on the' fasues

',N raised in Applicants' petition. Application of this standard would deprive the Commission of, inter alia, the technical views of the . NRC Staff on

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such essential matters as whether the technical informatf3n . upon which

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,' s the petition is based is complete an'fl ' accurate , and whether the

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' conclusions drawn therefrom are technically falid, s In sum, application of the low threshhold propounded by the Licensing Board for defining a prima facle' c'ase will not protide the Commission with sufficient information to reasonably determine whether the

.j(10-mile EyZ requirement should be waived in this pibceeding and whether ,l the one-mile alternative proposed by the Applicants or other alternatives should be authorized. Although Section 2'. (58'(d) contemplates that the Commission may be able to make a final determination on the basis of the

- record developed below, application of the Licensing Board's standard will

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require the Commission to seek "further proceedings to aid in its

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determination. " Indeed, the Board's standard would seem to require that the Commission would have to start nearly from scratch in developing a

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record to aid in its determination. For these reasons, the Staff does not agree with the definition _of prima f$ propounded in the Board's order of January 7th. .

Despite our disagreement' with the Board's standard, the Staff has i

not objected to the Janucry 7th order, since certification to the' \

Commission would enable the Commission to provide guidance as to the l

further steps that would best provide for the efficient development of a i , t

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1 record adequate to allow the Commission to decide whether or not to grant Applicants' petition. While this is not the purpose of the certification provision contained in Section 2.758(d), obtaining the Commission's procedural guidance at this stage will not constitute harmful error and may well be beneficial from the standpoint of moving this matter to a timely resolution. The Staff's principal concern with respect to the

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petition is that the technical and legal matters raised in the petition be

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resolved in as expeditious a manner as can reasonably be accomplished (with due consideration to the rights of the parties) so that an adequate f record can be provided to the Commission. In this regard, the Staff (

estimates that it will be ready in the latter part of 1987 to fully respond to the technical merits of Applicants' petition and express its opinion on whether the requested exemntion should be granted.

Accordingly, the Staff requests that the Licensing Board accompany certification of the petition to the Commission with the Staff recommendation that the Commission establish a separate licensing board composed of Licensing Board Panel members with experience in the litigation of probabilistic risk issues EI or with a strong technical background in reactor-related issues to consider Applicants' petition.

Such a board should be empowered to take, depending upon the nature of the factual. issues raised by the parties, those steps necessary to provide for the development of a complete record. This should include consideration of whether the ten-mile EPZ requirement ought to be waived, whether an alternative requirement would adequately fulfill the purposes il Probabilistic risk issues were previously litigated in the Indian Point and Limerick proceedinsrs.

s for which the emergency planning regulations were adopted, the effect of any Ifeensee plan which may be submitted for areas in the vicinity of Seabrook, and the effect of the agreement between Applicants and the State of New Hampshire formalizing a commitment to continue emergency pinnning efforts out to ten miles in the State of New Hampshire, b The Board should be authorized to: receive evidence; determine on a showing by any party or on its own motion whether oral examination of witnesses is required to assure an adequate exposition of relevant and material facts; permit and limit discovery to such information as may be necessary to assure an adequate exposition of relevant and material facts; and set reasonable schedules for the receipt of evidence, including the scheduling of formal or informal hearings. With respect to other procedural matters that may crise, the Board should follow the provisions of 10 CFR part 2, Subpart G.

After the record is fully developed, the Board should then be instructed to again certify the matter to the Commission.

Respectfully submitted, M

Robert G. Perlis Counsel for NRC Staff

( Dated at Bethesda, Maryland I this 28th day of January,1987 l

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-4/ A copy of this agreement was transmitted to the Board and parties as an attachment to New Hampshire's response of January 26, 1987 to Applicants' waiver petition.

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. UNITED STATES OF AMERICA '87 JAN 30 P4 :20 NUCLEAR REGULATORY COMMISSION foc$ w, i, ;*$n BEFORE THE ATOMIC SAFETY AND LICENSING BOARDE-In the Matter of )

) Docket Nos. 50-443 OL PUDLIC SERVICE COMPANY OF ) 50-444 OL NEW HAf1PSHIRE, et al. ) Off-site Emergency Planning

)

(Seabrook Station, Units 1 and 2 )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN ACCORDANCE WITH THE LICENSING BOARD'S ORDER OF JANUARY 7,1987 CONCERNING APPLICANTS' PETITION FOR A WAIVER FROM EMERGENCY PLANNING REGULATIONS" above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system or, as indicated by double asterisks, by hand or express mail, this 28th day of January,1987.

IIelen Hoyt, Esq. , Chairman

• Gustave A. Linenberger, Jr.*

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, 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 Washington, DC 20555 Boston, MA 02108 Beverly IIollingworth Richard A. Hampe, Esq.

200 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 IIall RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801