ML20213A025
| ML20213A025 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/27/1987 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20213A026 | List: |
| References | |
| CON-#187-2340 OL, NUDOCS 8702030063 | |
| Download: ML20213A025 (23) | |
Text
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2 3Yb Filed: Januarff$hr1987
'87 JAN 29 P2 30 UNITED STATES OF AMERICA.
NUCLEAR REGULATORY CONNISS thh(l[ ;;, '
nn BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of:
PUBLIC SERVICE COMPANY OF ' Docket No.
NEW HAMPSHIRE, ET AL 50-443OL/54-VY/-0C (Seabrook Station, Unit 1) Offsite Emergency Planning
& Safety Issues Seacoast Anti-Pollution League's Brief in Opposition ,
to Applicants' Petition Under 10 CFR 62.758 and 10 CFR 650.47(c)
For Reduction in the Size of the Seabrook Station Plume Exposure Pathway EPZ On December 18, 1986, Applicants filed " Applicants' Petition Under 10 CFR 42.758 and 10 CFR 950.47(c) With Respect to the Regulat ions Requi r ing Planning f or a Plume Exposure Pathway Emergency Planning 7one in Excess of a One-Mile Radius" (hereinafter
" Applicants' Petition") and " Applicants' Memorandum in Support of Their Pet i t ion Under 10 CFR 92.758 and 10 CFR 050.47(c) Wi th Respect to the Regulations Requieing P1anning for a P1ume Exposure Pathway Emergency Planning Zone In Excess of a One-Mile Radius" (hereinaf ter
" Appl i can t s ' Memor andum") . Accompanying these documents were various technical documen t s and a f f idavi t s li s t ed in Applicant s ' Memorandum at 7-8. SAPL opposes Applicants' pet it ion f or the reasons set forth below.
~
8702030063 870127 b PDR ADOCK 05000443 G PDR
- 1. Applicants Do Not Make the Requis ite Showing. Pursuant to 62.758, That the Regulat ions Requiring Planning For a Ten Mile Emergency Planning Zone Would Not Serve the Purpose for Which the Regulations Were Adopted in the Case of Seabrook Station.
Section 2.758 of the Commission's regulations, which provides for the granting of waivers or exceptions t o t h e Commi s s i o n s ' rules or regulations, states:
A. party to an adjudicatory proceeding involving initial licensing subject to this subpart may petition that the application of a speeified Commission rule or regulation or any provision thereof, of the type described in paragraph (a) of this section, be waived or an exception made_for the particular proceeding. The sole ground for petition for waiver or exception shall be that special circumstances with respect to the subj ect matter of the particular proceeding are such that application of the rule or regulation (or provisions thereof) would not serve the purposes for which the rule or regulation was adopted.
[ Emphasis added.]
Applicants are seeking an exception or waiver of those provisions of the Com:nission's regulations wnich require planning for a plume exposure pathway emergency planning zone in excess of one mile in radius for Seabrook Station. In order for such a grant of waiver or exception, the Applicants must meet the burden of proof showing that emergency planning from a distance of 1 to 10 miles does not meet the purpose for which the generic plume exposure EPZ radius was established.
The purpose for the generic Emergency Planning Zone Concept is stated in the Commission's final rule on Emergency Planning. The discussion of the final rule states: . ,
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The Commiss ion notes that the regula tory bas is f or adopt ion of the Emergency Planning Zone (EPZ) concept is the Commission's decision to have a conservative emergency planning policy in addition to the conservatism inherent in t he def ens e-in-desth ph i1osophy. [Emphas i s added. ] 45 Fed. Reg. 55402, at 55406, Col. 2 (August 19, 1980).
A further discussion of the purpose of the generic 10 mile EPZ requirement i s des c r i bed i n NUREG-0 30 6, EPA 5 2 0 /1-7 8-016, " Planning Basis For the Development of State and Local Government Radiological Emergency Response Plans In Support of Light Water Nuclear Power Plants", December 1978 (hereinafter "NUREG-0396"). In discussing the size of the emergency planning zone, the joint NRC/ EPA Task Force which prepared NUREG-0396 described the basis for the choice of a generic 10 mile distance for the plume exposure pathway as follows:
The EPZ recommended is of sufficient size to provide dose savings to the population in areas where the projected dose from design basis accidents could be expected to exceed the applicable PAGs under unfavorable atmospheric conditions. As illustrated in Appendix 1, consequences of less severe Class 9 accidents would not exceed the PAG levels ou ts ide the recommended EPZ dis tance. In addit ion, the EPZ is of sufficient size to provide for substantial reduction in early severe health effects (injuries or deaths) in the event of the more severe Class 9 accidents.
[ Emphasis added]. NUREG-0396 at pp. 16-17.
Thus, the purposes f;or the generic EPZ of 10 miles are a conservative emergency planning policy which is to be in addition to the defense-in-depth pr.ovided by proper siting and engineered design features and to provide dose savings to the public.
The Commi s s ion, in the final rule on Emergency Planning, clearly articulated that these purposes must be met:
As the Commission reacted to the accident at Three Mile Island, it became clear that the proteetion provided by siting and engineered design features must be bolstered-by the ability to take protective measures during the course of an accident. [ Emphasis added]. 45 Fed. Reg. 55402, at 55403.
] Applicants try to make their case by arguing that emergency-planning out to a dis tance of _10 miles is "not necessary" at Seabrook Station.- (Applicants' Petition at 2), in the effort to establish the alleged lack of necessity, they compare the results obtained in I
i the Seabrook Emergency Planning 7one Study (hereinafter "SEPZS"),
Seabrook Station Risk Management and Emergency Planning Study (hereinafter "RMEPS") and Seabrook Station Emergency Planning i Sensitivity Study (hereinafter "SSEPSS") and the s ta t emen ts in i Af fidavit of John G. Robinson with " rationales" for the choice of a 1
10 mi1e EPZ f rom NUREG-0396, as paraphrased in NUREG-0654. Applicants concede that , "The foregoing analysis and major premise of the petition is based on the concept that NUREG-0396 represents the appropeinte risk eriterla by which the efficacy of a PEP 7 should be judged." (Applicants' Memorandum at pp. 21-22). The maj or premise of the pet i t ion is f alse because the Commiss ion has never es tablished that NUREG-0396 sets the level of risk to the public against which the need for or efficacy of emergency planning is to be measured.
The intent of emergency planning has always been to provide an additional layer of public protect ion above and beyond the def ense-in-depth supposedly achieved through proper siting and engineered t
design features.
Indeed, Applicants seem to realize that reliance on NUREG-0396 is a serious problem wi th their petition and they try to prop up their argument by referring to the health risks estimated in WASH-
1400 and by referring to the NRC Safety Goal for individual risk.
(Applicants' Memorandum at 22).
However, 'the Commission in their statement of General Considerations- related to Quantitative Objectives used to Gauge Achievement of the Safety Goals has explicitly rejected the use of probabilistic risk assessment as a substitute for existing regulations:
Since the complet ion of the Reactor Saf ety Study, further progress in developing probabilistic assessment and in accumulat ing relevant data have led to a recognit ion that it is feasible to begin to use quantitative safety objectives for limited purposes. However, because of the sizable uncertainties still present in the data base
- essential elements need [ sic] to gauge whether the obj ect ives have been achieved - the quant i tat ive obj ect ives should be viewed as aiming points or numerical benchmarks of performance. In particular, because of the present limitations in the state of the art of quantitatively estimating risks, the quantitative health effects obj ect ives are not a subs t i tue f or exis t ing regulat ions.
The Commission recognizes the importance of mitigating the consequences of a core-melt accident and continues to emphasize features such as containment, siting in 1ess populated areas, and emergency planning as integral parts of the defense-in-depth concept associated with its accident prevention and mitigation philosophy. 51 Fed.
Reg. 28044, at 28045 (August 4, 1986). [ Emphasis added.]
Therefore, even if Applicants' probabilistic risk assessments show that the Commission's Safety Goals are met, the risk levels in f NUREG-0396 ar e me t and/or the risk levels implicit in WASH-1400 are i
met, the Commission has rejected this type of analysis as a basis for substitution for existing regulations.
Further, the Special Inquiry Group contracted by the NRC in the wake of the Three Mile Island nuclear accident to review and report on the accident wrote as follows:
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.- . .- . - - . _ - - - - - ..- _ - _ _-_- - .- -- - ~ . - -
The Three Mile Island accident demonstrated that the
, evacuation of people living within a 10-mile radius of a j cc.mme r c i a l nuclear powerplant, or beyond, needs to be considered a realistic precautionary measure, even when observed levels of radioactive release are well below previously formulated Federal " protective action guidelines." [ Emphasis added].
l The Special Inquiry Group went on to state that:
d i In the case of existing plants, we have not studied in detail and we'do~not undertake to quantify in this report the minimum dis tance f rom any plant within which workable
- evacuation must be a condition of continued operation.
- l Ilowever, we believe the NRC's proposed 10-mile planning-zone is, by itself, inadequate as an arbitrary cutoff point. Wider evacuat ion may clearly be necessary in some unlikely accident situations. And, as Three Mile Island demonstrated, an ordered evacuation out to 10 miles would undoubtedly have ef f ects to 20 miles and more. Therefore,
, at the very leas t, s ignificant centers of populat ion beyond 10 miles f rom the plant must be considered in the planning as well. [ Emphasis added].1 1
The Applicants do not address the issue of the addi t ional layer j of public protect ion to be achieved by emergency planning between 1 and 10 miles other than to state "The additional risk avoidance to l
be had at Seabrook by imposing a full 10 mile PEPZ on the plant is so extre.nely low as to be properly characterized as negligible."
(Applicants' Memorandum at p. 23). Applicants further state that
, "The extra nine miles for Seabrook accomplish no health and safety I
i
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purpose and tend only to make planning more diffuse, more costly, t
F subject to more polit ical vagaries and less f ocussed." (Applicants' Memorandum at p. 25.) However, the " sole ground" for a waiver or i exception under 42.758 is a showing that the purposes for which the regulations were adopted will not be served, and thus - as a threshold i
i
!' 1. "Three Mile Island: A Report to the Commissioners, Volume 1" l Nuclear Regulatory Commission Special Inquiry Group; Mitchell l
Rogovin, Director; George T. Frampton, Jr. , Deputy Director; January, 1980.
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1 matter- the statement that the risk avoidance to be achieved is
" negligible" does not meet that standard regardless of the merits of that claim by Applicants.
The Applicants claim of "no health and safety purpose" might make the threshold showing if it were supported, but Applicants' supporting materials do not establish the validity of that claim.
The November 9,1985 let ter of the R\1EPS Peer Review Group (hereinaf ter
" Peer Group No. 1") states:
"We concur with the finding that the early health risks from potential accidents at Seabrook are principally confined to areas very close to the reactor, much less than the 10-mile dis tance now used in emergency planning."
[ Emphasis added]. (Peer Group No. 1, at 2 ).
The Peer Review Group does not find that no health and safety i
i purpose would be served by a 10 mile evacuation, only that "early" i
health risks would be " principally" confined to the area close to the reactor. R\1EPS, cited by the Applicants as a support for the s tatement of " negligible" benefit to be achieved by evacuation, also does not support the finding that no purpose would be served by emergency planning out to ten miles. Indeed, the document seems to presume that some plans will be in place for sheltering:
i There is no measurable dif ference in risk reduction between i evacuation to 10 miles and the combination of evacuation to 2 miles and sheltering for a distance of to 10 miles.
Ri1EPS at 2-14.
i Further, the document states that:
More than 70% of the risk benefits from evacuation are realized with a 1-mile evacuation distance. More than 95%
of the risk benefits f rom evacuation are realized within a 2-mile evacuation distance.
These statements do not support a finding that there is no purpose to be served by planning out to 10 miles. Therefore, I
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Applicants have not met the legal standacd imposed by 02.758 that emergency planning from 1 - 10 miles serves no purpose. Further, as nottd above, the Commission has very explicitly rejected quant i ta t ive es t imat es of r is k being used for purposes of subs t i tut ing for existing regulations.
- 11. Applicants Do Not Make the Requisite Demonstrations Pursuant to 050.47(c)(1).
Section 50.47(c)(1) of the Commission's regulations provides as follows as regards the Commission's emergency planning standards:
Failure to meet the applicable standards set forth in paragraph (b) of this section may result in the Commission declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies.in the plans are not significant for the plant in question, that adequate interim compensat ing actions have or will be taken promptly, or that there are other compelling reasons to permit plant operatlon 2 A. Applicants Have Not Demons trated That The Deficiencies For Seabrook Are Not Significant.
At the outset, SAPL contends the Applicants' alternate prayer for relief under 650.47(c)(1) mus t be dismissed as inadequate as a matter of law. That section refers to " deficiencies in the plans" which are "not s igni fican t for the plant i n ques t ion. . . ". In this case, there are not merely " deficiencies in the plans", but an absence of state, local, or even utility plans for six communities within the Massachusetts portion of the 10-mile EPZ.
Applicants may claim that the absence of plans is in fact merely one type of a deficiency, liowever, such an interpretation of the regulation must yield both to the plain language of the
- 2. As set forth at page 16, infra, in order to avail themselves of 650.47(c)(1), Applicants' must meet the speci f ic exempt ion cr i t er ia of 650.12(a).
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regulation, and the fact that such a position has already been rejected by the Appeal Board.
The Applicant's position cannot withstand analysis. The absence of plans is simply not the same as " deficiencies in the plans."
In the Statement of Considerat ion accompanying cer tain of the amendments to the Emergency Planning Regulations, it is indicated that the type of deficiencies to which 50.47(c) is addressed are those that reflect only the actual state of emergency preparedness which may be easily remedied...[and] should not de?ty licensing action." 47 Fed. Reg. 30232, 30234 (1982). [ Emphasis added].
(Shoreham Nuclear Power Station, Unit 1, ALAB 818, 22 NRC 716).
Applicants do not mention this issue at all. Instead, they merely assert their belief that the " deficiency" created by the absence of plans for all Massachusetts communities and the EPZ is "not significant." Whether or not this is so, and SAPL of course disputes the claim, it remains clear that the use of 50.47(c)(1) is, by its terms, unavailable in the circumstances here.
Ilowever, even assuming arguendo that the Applicant's interpretation of 50.47(c)(1) was supportable, the Applicants cite as basis for their claim that the deficiencies for Seabrook are not s igni f ican t Par t s I and 11 o f Applicant 's Memorandum, " Demons t ra t ion of Compliance With NUREG-0396 Rationales" and "Other Criteria",
respectively. (Applicant's Memorandum at 26.) As SAPL has shown above, the compliance with NUREG-0396 criteria and other criteria are not appropriate bases for waiver or exception of the Commission's emergency planning regulations. Assuming for the moment that the NUREG-0396 rationales were the appropriate criteria against which
to measure levels of risk to the public, it can be shown that Applicants do not meet those eriteria. The enclosed Affidayit of Richard L. Kaufmann (hereinafter the "Kaufmann Affidavit"),
demonstrates the lack of compliance. The first rationale Applicants address is:
" projected doses from traditional design basis accidents would not exceed Protective Action Guide levels outside the zone;" NUREG-0654 at 12, Qa.
The Kaufmann Af fidavit points out that the SEPZS concludes tha t even the upper 25 rem Protect ive Act ion Guide (PAG) for thyroid exposure is exceeded beyond the 1-mile EPZ and that Seabrook Stat ion would present the highest risk of any plant in the country with the proposed 1-mile EPZ. Applicants bring the projected doses down by employing "more realis t ic but nevertheless conservat ive" methodology (Applicants' Memorandum at 16-17), but the Kaufmann Affidavit es tablishes that at leas t some of the new methods are not conservat ive, spec i f ically, t he as su.npt ion o f immedia t e ef f ec t iveness of f il t er ing and iodine removal and the use of 50% meterology. (Kaufmann Af fidavit at 1-2).
Further, Applicants cite NUREG-0396 as stating that the DBA - LOCA is not a realistic accident scenario. It is well to recollect that NUREG-0396 was published in December 1978, prior to the March 28, 1979 Three Mile Island Nuclear Plant accident.
The second and third rationales Applicants address are:
, " projected doses from most core melt sequences would not exceed Protect ive Act ion Guide Levels outside the zone;"
and "for the worst core melt sequences, immediate lif e threatening doses would generally not occur out s ide the zone." NUREG-0396 at 12, Q Q b and c.
The Kaufmann Affidavit establishes that the petition and supporting documents do not provide curves that can be compared wi th the NUREG-0396 Figures I-16, I-17, and 1-18 for injuries and f atalit ies given the most serious " atmospheric" class of release and tha t therefore, the statements that a 10 mile EPZ is unnecessary are not supported (Kaufmann Af fidavit at 3). The fourth rationale for a 10 mile EPZ that Applicants address is:
" detailed planning within 10 miles would provide a substantial base for expansion of response ef f or ts in the event that this proved necessary".
NUREG-0654 at 12, $d.
The Kaufmann Affidavit states that expansion of an emergency response into Massachusetts would require involvement by Massachusetts and that, since the proposed EPZ would be entirely in New flampsh ire, the effort at an ad hoc expansion effort would be seriously degraded by the 1-mile EPZ concept.
The statements in the Kaufmann Af fidavit about the ef ficacy of response from a 1-mile EPZ are in keeping with the statements of t he NRC's Special Inquiry Group, supra, in which the point was made that even a 10-mile EPZ is inadequate as an arbitrary cut off point for planning because of the potent ial necessity for expansion of the emergency response. SAPL notes t ha t Dr. Rober t J. Budn i t z, Cha i rman of the Peer Review Group appointed by New flampshire Yankee to review
the RMEPS and SSEPSS, was the Technical Coordinator for the NRC's Special Inquiry Group when it arrived at those conclusions.
Applicants base their asser t ion that a 1-mile EPZ provides a suf ficient base for ad hoc expansion of emergency response ef forts on the Af fidavit of John G. Robinson. Mr. Robinson does not explain how an emergency response organization, notification procedures, f acili t ies and equipment , and so for th can be expanded beyond 1 mile to serve the needs of the population within 10 miles, particularly that population over the state border. The argument set forth in Applicants' Memorandum at n.1 (citing the Shoreham decision) that the Commonwealth of Massachusetts' refusal to participate is
" unrealistic" falls on its face when there are no plans in place that the Commonwealth reasonably could be expected to implement in the event of an emergency. Mr. Robinson's curricum vitae shows no involvement in offsite emergency response plannning for any fixed nuclear facility. His work appears to have been focussed in-plant.
In deciding SAPL's appeal of a Commission decision declining review of the Director of Nuclear Reactor Regulation's denial of SAPL's request pursuant to $2.206 for institution of a hearing on the feasibility of evacuation, the U. S. Cour t of Appeals concluded as follows:
We are not unsympathet ic with SAPL's pos i t ion in this case. SAPL has presented evidence regarding the unique f eatures of the Seabrook area and th? current state of emergency preparedness in the area that would seem to warrant the Commission's most careful examination in evaluating the adequacy of the final Seabrook EP7. emergency plans. [ Emphasis added].
Seacoas t An t i-Pollut ion League v. Nuclear Regulatory Commission, 690 F. 2d 1025 (D.C. Cir. 1982).
i
Additionally, the intervenors in the Seabrook licensing proceeding have filed extensive contentions on significant deficiencies in the emergency plans for the New llamps h i r e portion of the 10-mile EPZ. Intervenors have not yet had the hearings provided for under Section 189a of the Atomic Energy Act. SAPL has a particular interest in challenging the adequacy of evacuat ion t ime estimates provided in support of the emergency response plans. The Peer Review Group stated concerning the R\lEPS analysis:
We recognize, of course, that the details of the consequence conclusions are sensitive to the specifie assumptions made about warning time, evacuation behavior, meterology, deposition velocity, and the like --- all of which are imperfectly understood. [ Emphasis added).
(Peer Group No. 1, at 4).
Without providing intervenors a hearing on these matters, it cannot fairly be found that the emergency planning deficiencies are not significant for Seabrook Station.
B). Applicants Have Not Demonstrated That Adequate Interim Compensating Actions Have or Will Be Taken Promptly Applicants have made no at tempt in their discussion of the legal requirement under 050.47(c)(1) to address this criterion, since they claim that quali ficat ion under any one eri terion is suf ficient.
SAPL does not take issue with this, but argues that Applicants do not meet any of the cri teria. Should Applicants subsequently address this criterion, SAPL will respond.
C). Applicants Have Not Demonstrated That There Are Other Compelling Reasons to Permit Plant Operation.
Applicants assert that there are "other compelling reasons to permit plant operation." The reasons they suggest both relate to economics; namely, that Seabrook is a " valuable energy resource" and should not remain idle, and that the costs of limiting a completed plant to low operation pose an unnecessary economic burden (p. 26).
These arguments must be rejected by the Commission. In SAPL v. NRC, supra, the Court of Appeals specifically endorsed this Commission's assurance to the court that:
"The Commission does not, and cannot, consider the utilities' investment in a particular facility in determining whether " reasonable assurance" exists which justifies the grant of an operating license." SAPL v. NRC, supra (1982).
The Appeal Board said the same "In the Matter of Philadelphia Elect r ic Co. (Limer ick Generat ion Stat ion, Units 1 and 2 ) ALAB-800, 21 NRC 1595 (1985). Thus, the only " compelling reason" that could be asserted that would arguably meet the requirement of 50.47(c)(1) would be an unavoidable and imminent power shortage in the area to be served by the proposed plant. -
No such claim has been made in this case, and such a claim could not be made. As set forth in the at tached af fidavit of counsel, the lead applicant, Public Service Company of New Hampshire, has specifically asserted the existence of excess capacity both on its own system, and in New England.
On December'23, 1986, in furnishing data responses to a New Hampshire Public Ut ilit ies Commission, PSNH had this to say about the New Hampshire capacity situation:
"Of the PSNH capacity not needed to serve its own load (about 900 megawatts in 1996 in the Base Case),
only 200 megawat ts is assumed to be sold at the NEPOOL buyback rate, which is assumed to be based on the cost of oil fired generation. PSNH is then assumed to back down the remaining unused capacity, depending on how much non uti1ity generation is purchased."
2 Thus, according to PSNH itself, Seabrook gives it 900 megawatts of excess capacity, and will only be able to dispose of 200 megawatts to the power pool. PSNH's interest in Seabrook is 409 megawatts.
In regard to the New England situation, Public Service had
- the following to state
... assuming a reserve level of around 23% in the summer, NEPOOL has capacity beyond its need until 1993. PSNH does not believe it should count on selling i all its capacity surplus when NEPOOL as a whole ha .
a surplus... Another indication of the value of capacity in New England is that Northeast Utilities is currently planning to retire over 400 megawatts of capacity by the end of 1986. NU has been working with other New England companies to have New England support the cost of this capacity, however, to date i
no argument [ sic] has been made, if New England as a whole felt this capacity has a value, they [ sic] .
would have come to an agreement [ sic] such that it would not be retired."
Accordingly, there is no basis for any claim of an imminient
, power shor tage as a " compelling" reason "to permi t plant operat ion,"
and the attempt to use utility economic claims, has already been rejected by the Commission, and by the Court of Appeals, as a basis for regulatory action.3 l
l
- 3. Even were the Commission to consider the Applicant's economic claims, SAPL would dispute them, in fact, under New Hampsh i re law, customers of Public Service Company of New Hampshire, and the New Hampshire Electric Co-operative, the other New Hampshire utility i owner, cannot be charged to rate payers until the time of plant operation. Thus, although there may be an economic cost involved with the delay of plant operation, that cost does not fall on New l
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D). An Applicant seeking an exemption from the Commission's emergency planning requirements under 50.47(e)(1) is required to meet the exemption requirements of 50.12(a).
In order to obtain relief under 50.47(c)(1), the Applicants must meet either the waiver requirements of 2.758, discussed above, or the specific exemption requirements of 50.12. Philadelphia Electric Company. (Limerick Generating Station, Units 1 and 2),
ALAB 809, 22 NRC 1605 (1985).
Even the Applicants do not seriously contest the need to meet 50.12(a) criteria. They put forward this notion only in Footnote 2 on Page 23 of their Memorandum, and then proceed to claim, on Page 28, that they do meet t he 5 0.12 ( a ) criteria. See also In the Matter of Long Island Lighting Company, 22 NRC 651, 679, note 94, (1985).
E). The Applicants cannot meet the 50.12(a) requirements for a specific exemption.
Section 50.12(a), amended ef f ect ive January 13, 1986, has two subsect ions. The first subsection permits exemptions which are
" authorized by law, will not present an undue risk to the public health and safety, and are consistent with the common defense and i
security "
The Applicants claim to meet these criteria, but they ignore the requirements of subsection 2, which states that "the i Commission will not consider granting an exemption unless special circumstances are present. Special circumstances are j present. . ."[when one of six special circums tances are es tablished].
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(cont.)
Hampshire citizens who are customers of the New Hampshire owner utilitles. N.H. Revised Statutes Annotated, 378:30-a.
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Subsections one and two of 50.12(a) are not disjunctive.
Sect ion two clearly applies as f ully to an exemption reques t as does -
section one.4 Accordingly, it is necessary to determine if the Applicants have met any of the six special circumstances provided for in 50.12(a)(2). It will be seen they have not done so.
The first special circumstance, that application of the ,
i regulation " conflicts with the rules and regulations of the Commission," is clearly not available, since no claim of a conflict 1
with any other rule or regulatian has been suggested. ,
The second special circumstance, that application of the
- regulation would not serve the underlying purpose of the rule, has
, been dealt with in the-discussion of the waiver request pursuant to 2.758, supra, and that discussion is incorporated here. See page 1 et. seq., supra.
The third special circumstance, that compliance would result "in undue hardship or other costs" not contemplated when the regulation was adopted, or that are significantly excess of those 4
! incurred by others, is also not applicable, since the regulatory i
3 history makes it clear that it was contemplated that a failure to j have in hand adequate emergency plans could lead to denial of an
, operating license. See SAPL v. NRC, supra, in which the Commission assured the Court of Appeals that no operating license would be issued for Seabrook unless the " reasonable assurance" requirements of emergency planning regulations could be met.
I 4. This was made very clear in the Commission's discussion of the
! proposed changes to 50.12 in 90 Fed.Rev. 16,506, 16,508-09.
The four th special circums tance, that the exempt ion "would result in benefit to the public health and safety" is not even claimed to be applicable. The Applicants merely claim that the 10-mile EPZ provides a benefit which is only " negligible," (Applicants' Memorandum at 23, 26), but even they do not claim that there is a benefit to the public heal th and sa f ety f rom reducing the emergency planning zone f rom 10 miles to 1 mile. See discussion at 6-7, suora.
The fifth special circumstance, that the exemption would provide only temporary relief from the applicable regulation, is plainly unavailable since the Applicant's request here is not for temporary relief, but for a permanent applicat ion of the requirement for a 10-mile emergency planning zone.
The sixth special circumstance, that there are other material circumstances not considered when the regulation was adopted, is also unavailable, since there is no showing, nor could there be, that the denial of an operating license was not considered as a result of a f ailure to comply with the Commission's regulations in regard to emergency plsoning. SAPL v. NRC, supra.
l Indeed, in the Commission's discussion of the rationale for adoption of the final emergency planning rules, the Commission j expressly stated:
i "The Commission recognizes there is a possibili ty that the
! operation of some reactors may be affected by this rule through inaction of state or local governments or inability to comply with these rules. The Commission believes that the potential restriction of plant operation by State and
- local of ficials is not significantly dif f erent in kind or effect f rom the means already available under existing law to prohibit reactor operat ion, such as zoning or land use laws , cer t i f ica t ion of public conven ience and necess i ty."
45 Fed. Reg. 55402, at 55404, Col. 1 (August 19, 1980) l I
Thus, it is clear that the material circumstance which concerns the Applicants here, license denial, was expressly cons idered by the Commission when the regulation was adopted.
In short,.there is no basis for a specific exemption from the Commission's emergency planning regulations pursuant to 50.12(a).
CONCLUSION For the reasons stated, and based upon the attached af fidavits, SAPL states that the Applicant's Petition should be denied, since no prima facie showing for a waiver or specific exemption has been made.
Respectfully submitted, Seacoast Anti-Pollution League By its attorney, BACKUS, MEYER & SOLOMON c s :,*,.
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R~obert A. .Backus' P. O. Box 516 116 Lowell Street Manchester, N.H. 03105 Tel: (603) 668-7272 Date: January 27, 1987 I hereby cer t i f y tha t a copy o f the wi t h in SEACOAST ANTI-POLLUTION LEAGUE'S BRIEF IN OPPOSITION TO APPLICANTS' PETITION UNDER 10 CFR 62.753 AND 10 CFR s50.47(c) FOR REDUCTION IN THE SIZE OF THE SEABROOK STATION PLUME EXPOSURE PATHWAY EPZ has been sent this date, Federal Express, to those indicated by-an
- on the at tached service lis t , and fi rs t class, pos tage prepaid to other parties on the service list.
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Robert A. Backus CERTIFICATE OF SERVICE AND SERVICE LIST St E tt :
Jose Asst.Gn.Cnsl. IIelen Hoyt . Chm.
- TUbIdas Dignan, Esq.*
Fed. ph Flynndgmt.
Emerg, Agcy. Admn. Judge Ropes & Gray 500 C .St. So. West F Q Ip Washington, DC 20472 Atomic USNRC Safety & Lic Brd. g7 jd@osTon,pgn hfA St.
02110 Washington, DC 20555 off:
- Office of Selectmen Dr. Jerry Harbour
- DOCe,i N0cketibN & Serv. Sec.
- Town of Hampton Falls Admin. Judge d'ffice of the Secretary Hampton Falls, NH 03844 Atomic Safety & Lie Brd. USNRC USNRC Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq. 4 Dr. Emmeth A. Luebke
- Jane Doughty Office of Exec. Legl. Dr. Admin Judge SAPL USNRC Atomic Safety & Lic. Brd. 5 Market Street Wahsington, DC 2055,. Portsmouth, NH 03801 USNRC Washington, DC 20555 Phillip Ahrens, Esq. Paul McEachern, Esq. George Dana Bisbee, Esq.
Asst. Atty. General ahtthew Brock, Esq. Attorney General's OFF.
State H0use, Sta. #6 251hplewood Ave. State of New Hampshire Augusta, ME 04333 P.O. Box 360 Concord, NH 03301 Portsnnuth, h11 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 Washington, DC 20009 Amesbury, MA 01913 Richard A. Hanpe. Esq. Ihynard Young, Chairman Sandra Gauvutis New Hanpshire Civil De1ense 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 Judith H. Mizner, Esq. Edward Thomas Mr. Robert Harrison
, Silverglate, Gertner, FEMA Pres, & Chief Exec. Officer Baker, Fine, Good & Mizner 442 J.W. McCormack (POGI) PSCO 88 Broad Street Boston, MA 02109 P.O. Box 330 Boston,f1A 02110 1hnchester, hli 03105 Roberta Pevear State Rep.-Town of Ha.'rpt Falls Drinkwater Road Hanpton Falls, NH 03844
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AFFIDAVIT OF ROBERT A. BACKUS
- 1. My name is Robert A. Backus and I am counsel of record for the Seacoast Anti-Pollution League, an intervenor in the Seabrook licensing proceeding.
- 2. I also, as counsel for SAPL, am an at torney of record in various dockets pending before the New Hampshire Public Utilities Commission, concerning small power producer applications for rates f rom Public Service Company.
- 3. In this capacity, I regularly receive data requests f rom small power producers to Public Service Company, and the responses of the Company to those data requests.
- 4. Attached to this Affidavit is a Response of Public Service
. Company of New Hampshire to a data request f rom Pinetree Power Development Corporation, which sets forth the Company's position that it will have substantial excess capacity in the event of the commercial operation of the Seabrook Power Plant. The data reques t also sets forth that the Company believes New England will have substantial excess capacity.
- 5. The attached excerpts from the data responses are true and accurate copies of the data responses furnished by Public Service Company to the participants in the small power docket.
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Dated: January 26, 1987 '
/Robdrt A. Backus STATE OF NEW HAMPSHIRE (X)UNTY OF llILLSBOROUGH Then personally appeared the above-named Rober t A. Backus and acknowledged that the foregoing statements by him subscribed are true and correct to the best of his knowledge and belief. Before me.
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Intervenor Data Request Set 2 - Request 10 Cont.
Page of PUBLIC SERVICE COMPANY OF NEN HAMPSHIRE RESPONSES 'IO DATA REQUESTS FROM PINETREE POWER DEVELOPMENT CORPOPATION AND AMERICAN COGENICS SET #2 Request #10 Continued:
a Response: In the integrated Least-Cost Strategic Planning Model, as in the actual utility system, a change in assumptions in one sector has ramifications on other parts of the system. In particular, the different levels of cogeneration /SPP that result from different avoided cost policies affect the average price of electricity and PSNH net income as shown on pages 78 and 80 of the testimony.
The electricity price in the base case as well as in the other scenarios assumes that the " Pathway 2000" program is implemented. This program assumes increases of 14% and 7% in 1986 and 1987 for non-Seabrook items, and five increases of 10% per year for Seabrook costs (ending in 1991). Rate increases for fuel cost escalation and small power producer contracts are all allowed on top of this increase. After 1991, rates increase only with fuel and
- PURPA purchases until rates are within five percent of the rates indicated by normal ratemaking, including full Seabrook capital cost recovery (excluding deferred interest or AFUDC) . At that point the model switches back to conventional ratemaking (in accordance with the PSNH Pathway 2000 plan; for the Base Case this occurs in 1991). Conventional ratemaking allows PSNH to cover capital and operating costs, assuming an allowed return on investment equal to PSNH's weighted cost of capital. The model also assumes a one-year regulatory delay before any rate changes occur. Those assumptions reflected AES's understanding of the " Pathway 2000" program at the time this analysis was prepared (Fall, 1986). Refinements of the rate policies contained in this program are still being developed.
The electricity price is higher with higher avoided costs partially because more is being paid by PSNH for kWh of non-utility power purchased, but more importantly, because more capacity is being purchased at a time when it is not needed. Of the PSNH capacity not needed to serve its own load (about.900 Mw in 1996 in the Base Case), only 200 Mw is assumed to be sold l at the NEPOOL buyback rate, which is assumed to be_ based _on_the cost of oh-rired generation. PSNH is then assuEIelI: to back down the remaining unused capacity, depending on how much non-utility generation is purchased. (See the answer to question 11 for more detail of how avoided costs affect price).
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- Intervenor Data Request Set 2 - Request 22 Page 1 of 1 PUBLIC SERVICE COMPANY OF NEN HAMPSHIRE RESPONSES M DATA REQUESTS FROM PINETREE PONER DEVELOPMENT CORPORATION AND AMERICAN COGENICS SET #2 Request #22: At page fourteen, item number five, you state that all capacity and energy will not be sold therefore additional capacity has no value beyond that calculated for PShH. Please support this statement with references to all studies, analyses and other work PShH has done which show that capacity and energy in excess of PSNH's load requirements is of no value to neighboring utilities? Also detail what assumptions you have made in respect ot the exchange price of this capacity and energy in excess of PSNH's needs?
Response: Attachment 22-1 contains page 1 of the 1986 NEPOOL CELT REPORT assuming a reserve level of around 23% in the summer, NEPOOL has capacity above its need until 1993. PSNH does not believe it should count on selling all its capacity surplus when NEPCOL as a whole has a surplus. Also see response to data request 7 of Unitil's Data Requests. Another indication of the value of capacity in New England is that Northeast Utilities is currently planning to retire over 400 MN of capacity by the end of 1986. NU has been working with other New England companies to have New England support the cost of this capacity, however, to date no argument has been made. If New England as a whole felt this capacity has a value, they would have come to an agreement such that it would not be retired.
J. J. Stastowski is responsible for this response.