ML20213A065
| ML20213A065 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/28/1987 |
| From: | Perlis R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2342 ALAB-853, OL-1, NUDOCS 8702030081 | |
| Download: ML20213A065 (16) | |
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'87 JTS 29 P3 :35 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 'r~
DEFORE TIIE COMMISSION In the Matter of )
) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW IIAMPSHIRE, et al. ) On-site Emergency Planning
) and Safety Issues (Seabrook Station, Units 1 and 2 )
NRC STAFF BRIEF IN SUPPORT OF ALAB-853 l
Robert G. Perlis Counsel for NRC Staff January 28, 1987 8702030081 870128 PDR ADOCK 05000443 h$01 y
G PDR
01/28/87 UNITED STATES OF Af.1 ERICA FUCLEAR REGULATORY COMMISSION BEFORE TIIE COMMISSION In the Matter of )
) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW I!AMPSHIRE, et al. ) On-site Emergency Planning
) and Safety Issues (Seabrook Station, Units 1 ond 2 )
NRC STAFF DRIEF IN SUPPORT OF ALAB-853 I. INTRODUCTION This brief is being filed pursuant to the Commission's Order of January 9, 1987 providing that parties advocating the affirmance of ALAB-853 could file briefs by January 27, 1987. 1 ALAB-853, issued on November 20, 1956, held that an operating license authorizing fuel loading and precriticality testing could be issued pursuant to 10 CFR II 50.47(d) and 50.57(c) prior to the submittal of offsite emergency plans called for by Section 50.33(g). 1 The Attorney General of Massachusetts
(" Massachusetts") filed a petition for Commission review of ALAB-853 on December 5, 1986; the Staff responded in opposition to the petition on December 22nd. On January 9, 1987, the Commission issued an order l
~1/ Because of heavy snow storms in the Washington area, the Staff requested and was graptml a one-day extension of time for the filing of this brief.
-2/ A more detailed history of the proceeding before the Licensing Board and Appeal Board can be found in the Staff's December 22, 1986 Response to Massachusetts' Petition for Review (at pp.1-4).
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0-o announcing that it had decided to review ALAB-853 and inviting additional briefs from the parties. Pursuant to that order, briefs advocating the reversal of ALAB-853 were filed by the Town of Hampton ("Hampton"),
the Seacoast Anti-Pollution League ("SAPL"), the New England Coalition on Nuclear Pollution ("NECNP"), and Illassachusetts. The Staff has previously set forth its views on the regulatory issue raised in the petition for review in its December 22nd response and in its October 24, 1980 brief filed before the Appeal Board. The Staff continues to hold to the positions expressed in those documents. In the interest of brevity, to the extent that the briefs filed on January 21st raise the same issues addressed in . the Staff's previous filings, the Staff will rest on our previous documents and will not attempt to repeat the arguments contained therein a third time. The Staff will instead focus in this brief on those arguments raised for the first time in the briefs filed on January 21st.
II. ARGUMENT The issue raised in the petition for review is a discrete one.
Section 50.33(g), adopted as part of a sweeping revision of the Commission's emergency planning regulations on August 19, 1980 (45 Fed.
Reg. 55402), requires that a license applicant submit to the NRC emergency plans covering the 10-mile plume exposure pathway emergency planning zone (EPZ). Section 50.47(d), adopted almost two years later on July 13, 1982 (47 Fed. Reg. 30232), provides that an operating license limited to power levels not exceeding 5% of rated power can be issued prior to any review or approval of offsite emergency plans. The basis
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for the adoption of Section 50.47(d) was the Commission's finding that offsite emergency planning was not needed to protect the public health and safety during operation at power levels below 5% of rated power. See 47 Fed. Reg. 30232. The question before the Commission is whether Section 50.33(g) should be read as requiring that offsite plans be submitted prior to the issuance of an operating Ifeense limited to power levels not exceeding 5% of rated power, notwithstanding the fact that such plans need not be reviewed at that time because offsite emergency planning is not needed to protect the public health and safety at that level of power operation.
The Staff's position that Section 50.33(g) should not be read as requiring the submission of offsite emergency plans before an operating license limited to power levels not exceeding 5% can be issued stems from the Staff's belief that Section 50.33(g) was never intended to impose any separate substantive requirements in the area of emergency planning. As noted earlier, Section 50.33(g) was adopted by the Commission as part of the changes to the emergency planning regulations occasioned by the accident at Three Mile Island. These changes included major revisions to the then-existing Appendix E to 10 CFR Part 50, as well as the birth of Section 50.47. -
The legislative history of these changes to the emergency planning regulations indicates that the final rules were based
-3/ Section 50.47 and Appendix E to Part 50 contain the Commission's prescriptive requirements for emergency planning for nuclear power plants. It is through the review of a license applicant's compliance with these substantive regulations that the Staff (aided by FEMA) is able to conclude whether or not the state of emergency preparedness at a given site will adequately protect the public health and safety.
. on the Commission's perception that more involved offsite emergency planning was important to protect the public health and safety in the event of an accident. Thus the Commission increased the scope of offsite planning, and called for FEMA review of the adequacy of such planning.
See 45 Fed. Reg. 55402 et seq. (August 19, 1980) (Final Rule); 44 Fed.
Reg. 75167 et seq. (December 19, 1979) (Proposed Rule). Although the discussions accompanying the proposed and final rule were lengthy, these discussions centered upon the substantive changes (embodied in the revision of Appendix E and the development of $50.47) under consideration; no direct mention was made in the discussions of the addition of Section 50.33(g). Under the circumstances, the Staff has concluded that Section 50.33(g) was promulgated merely to assure that, even though offsite plans were the focus of these important new safety regulations , license applicants (rather than local authorities) were responsible for providing these plans to the NRC.
Tlie Commission adopted Section 50.47(d) less than two years after promulgating the sweeping changes to the emergency planning regulations. As noted earlier, the basis for the adoption of Section 50.47(d) was the Commission's factual determination that offsite emergency planning was simply not needed to protect the public health and safety during low power operation. The Statement of Consideration issued with the adoption of the new regulation did not mention Section 50.33(g), nor did it evidence eny indication that the early submittal of offsite plans 1
might have played any role in the conclusion that no review of the adequacy of offsite planning was needed before exceeding 5% power. See i
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. . 47 Fed. Reg. 30232 et seq. (July 13, 1982) (final rule); see also 46 Fed.
, Reg. 61132 seq. (December 15,1981 (proposed rule).
The legislative history thus supports the Staffs conclusion that the substantive emergency planning regulations with which applicants must comply before a license can be issued are found in Section 50.47 and Appendix E; there is no indication in the history that Section 50.33(g) was ever intended to serve any purpose other than as an addition to the checklist of items that applicants must address to assure that its application is complete with respect to information necessary for an evaluation of whether the facility can be operated safely.
With the above as background, the Staff below addresses those arguments raised in the January 21st briefs that were not previously raised by Massachusetts (and previously addressed by the Staff in its two earlier filings).
A. HAMPTON Hampton in its brief does little more than challenge ALAB-853 as an
! attempt to amend Section 50.33(g). This argument presupposes that i
Section 50.33(g) was intended to require the submittsi of plans when such l
l plans are not needed to protect the public health and safety. As l
demonstrated above, the legislative history does not support this interpretation of Section 50.33(g). The Appeal Board properly applied the regulations; it did not change the application of the regulations in any way.
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D. SAPL SAPL argues (at pages 2-5) that Applicants have failed to comply with the substantive requirements of Section 50.33(g). Again, the issue is whether that Section was intended to place any substantive requirement on license applicants in the absence of any health and safety benefits.
For the ressor.3 set forth in our earlier pleadings, the Staff submits that Section 50.33(g) was never intended to place a separate substantive reqairement on license applicants beyond those contained in Section 50.47 and Appendix E.
SAPL also argues that ALAB-853 should have drawn a distinction between the requirement for plan submission and the requirement for findings as to the adequacy of the plans. As noted above, the legislative history suggests that the adoption of Section 50.33(g) was inextricably related to the adoption of the other substantive emergency planning requirements. Moreover SAPL's argument seems to be based on the assumption that low power licenses ought not to issue prior to resolution of offsite emergency planning issues. In rejecting this argument, the Appeal Board properly relied on the Commission's decisions in the Shoreham proceeding which support the proposition that low power licenses should be issued when safety regulations applicable to low power l are resolved b See ALAb-853, Slip Op. at 9-12. j l
~4/ Long Island Lighting Company (Shoreham Plant, Unit 1), CLI-84-9, l 19 NRC 1323 (1984) and CLI-83-17, 17 NRC 1032 (1983) (Iow power licenses can be issued without regard to speculation as to whether offsite emergency planning problems might serve as a bar to issuance of a full power license); CLI-84-21, 20 NRC 1437 (1984) (health and safety regulations with no application to low power operation need not be satisfied during low power operations).
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_7-Finally, SAPL argues (at pages 8-9) that the imposition of a requirement that offsite plans be submitted prior to the issuance of a low power license serves a valid safety purpose. In support of this proposition, SAPL cites the Statement of Consideration for the proposed adoption of Section 50.47 (d) 5/ which states that, before a low power I
license would be issued, the NRC would review various offsite aspects of the licensee's onsite plans. 6_/ SAPL argues that this statement presumes the existence of offsite plans. 'SAPL also argues that the very existence of offsite plans, even though unreviewed, provides an additional level of protection to the public.
SAPL is correct in its assumption that offsite elements of an applicant's emergency plan must be reviewed and approved before a low The existence of plans submitted by offsite >
power license may be issued. x x Q,
authorities , however, is not necessary for this review. The Staff has -
completed its review of the Seabrook Applicants' onsite plan and found that plan adequate. See Section 13 to Supplements 1 and 4 of the Seabrook Safety Evaluation Report. As part of its review of the Applicants' plan , the Staff reviewed Applicants' compliance with the
.I planning standards addressed by the Commission in the Statement of 5_/ 46 Fed. Reg. 61132 (December 15, 1981).
-6/ The Commission reiterated this position in the Statement of
! Consideration accompanying the final rule. See 47 Fed. Reg. 30232 (July 13, 1982). The commission thero stated, in its response to Issue 6, that " prior to issuing en operating license authorizing low-power testing and fuel loading, the NRC will review the following offsite elements of the applicant's emergency plan: [ Sections 50.47(b)(3), (5), (6), (8), (9), (12) and (15)] ." The Commission did not state in its response that offsite plans were needed for this review of an applicant's onsite plan.
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T Consideration accompanyinF the final adoption of Section 50.47(d). U The existence of offsite plans is simply not needed for the completion of
.c this review.
As to SAPL's other30 int, it may well be the case that the existence of offsite plans not yet reviewed by the NRC or FEMA might provide some (albeit small) incremental margin of protection. It is clear, however, that this incremental margin was not considered by the Commission in its adoption of Section 50.47(d). That regulation was adopted because of the finding that no offsite planning was needed to protect the public health and safety during low power o[eration. If no offsite planning is necessary during low power operation, any incremental protection provided by offsite planning at that level of operation would be instgnificant, s ..
C. NECNP ,
NECNP raises a number of iseues not directly considered in
. ALAB-853. Firs,t , that party (at page 2 of its brief) challenges the Commission's authority to issue any license until all contested issues are resolved. As NECNP recognizes, this argument is a direct challenge to
'Section 50.47(d) and Section 50.57(c). The short answer to NECNP's argument is that this is not the proper place or method to raise a generic k
challenge to the validity of two Commission regulations. The argument is also not relevant to the issue raised in the petition for review: whether 7_/ See note 6, supra.
. Section 50.33(g) requires the submittal of plans before a low power license can be issued.
Next, NECNP argues that ALAB-853 renders Section 50.33(g) a nullity , because compliance with that Section is only relevant in the context of applications for low power licenses pursuant to Section 50.47(d). Brief at 3-4. This argument ignores the legislative history of the relevsnt regulations. Section 50.33(g) was promulgated before Section 50.47(d) came into existence; for whatever reason the regulation was adopted, it is clear that it was not adopted to require the submission of plans in situations where the plans did not need to be reviewed to protect the public health and safety. During the later adoption of Section 50.47(d), no mention was made of Section 50.33(g). Only by completely overlooking the history of the regulations can it be concluded that the purpose of Section 50.33(g) was to require the submission of offsite plans before low power licenses could be issued pursuant to Section 50.47(d).
NECNP also seems to make an argument that ALAB-853 has limited the rights of the parties to the proceeding and shifted a burden of proof onto intervenors by placing "those who are ostensibly protected by the Commission's body of regulations .. . in the absurd position of having to prove that compliance with those regulations is necessary to protect their health and safety." Brief at 8. This argument is difficult to fathom.
ALAB-853 has not limited the rights of the parties to the proceeding in any way; those parties remain free to protect their interests in this proceeding by attempting to demonstrate that operation of the plant will in some way adversely affect those interests. It is unclear, however,
that any intervenors have a valid interest in an applicant's compliance with Section 50.33(g); the purpose of that regulation is to assure that the Staff is provided with the information it needs to determine whether the Applicants comply with the NRC's substantive emergency planrdng 8,/
requirements. Intervenors are not restricted in any way in raising contentions challengiiig the adequacy of offsite emergency planning for Seabrook; a great number of such contentions have already been 1.ubmitted and admitted for litigation. But the Commission has determined that offsite emergency planning is not necessary for the protection of the public health and safety during low power operation. There are no health and safety issues presented with respect to the question under review; no valid interest of any intervenor was adversely affected by ALAB-853.
Finally , NECNP raises a policy issue by questioning the wisdom of allowing the issuance of low power license before offsite emergency plans are submitted in this case. NECNP assr"s that Seabrook can not get a full power license in the near future, and that therefore there is no reason to issue a low power license before offsite plans are submitted.
This is nearly identical to the policy issue that confronted the Commission in the Shoreham proceeding. The Commission in that proceeding
-8/ Section 50.33 does no more than list items that must be covered in
' applications; the substantive regulations that must be satisfied in order to assure that operation of a facility will not adversely affect the public health and safety are set forth elsewhere in Part 50.
Section 50.33 serves as nothing more than a procedural checklist for an applicant and for the Staff. It is a failure to comply with the substantive health and safety regulations, and not Section 50.33, that could adversely affect the interests of a party intervening in a licensing proceeding.
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determined that an applicant for a low power license is entitled to a low power Ifcense once the applicant demonstrates compliance with those regulations relevant to low power operation. CLI-84-21, supra, 20 NRC 1437. The Commission also declined in the Shoreham proceeding to engage in speculation concerning the eventual issuance of a full power license before issuing a low power license. CLI-84-9, supra, 19 NRC 1323; CLI-83-17, supra,17 NRC 1032.
D. MASSACIIUSETTS Massachusetts raises the same legal issues it raised previously before the Appeal Board and in its petition for review. The only new issue raised by that party is a similar policy question to that raised by NECNP.
See Brief at 11-13. Specifically, Massachusetts asserts that low power testing typically takes but a few months, and that until offsite plans are submitted, a full power license is more than a few months away. In response, it must be noted that the Commission in Shoreham made plain its belief that low power licenses should be issued whenever compliance l
with all the relevant safety regulations was demonstrated. Further, while low power testing may in optimal cases be completed in a relatively short period of time, one of the purposes of such testing is to determine whether the facility is ready for full power operation. If problems are discovered during low power operation, it may well be more then a few months before further operation could be permitted. Thus it can not be
stated categorically that there are no benefits to early low power testing even if a full power license is more than three months away. El III. CONCLUSION l'or the reasons presented above and in the Staff's previous filings on this subject, the Staff submits that ALAB-853 was correctly decided and should be affirmed, i
Respectfully submitted, Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of January,1987
-9/ There is of course no way of ever predicting the exact date of issuance of a full power license prior to resolution of all the outstanding issues in a case.
. E U lit:
fMC UNITFD STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSION .g JAN 29 P3 :35 GFFw.
BEFORE THE COMMISSION 00CL-
- 5 In the Matter of )
) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 11EW HAMPSHIRE, et ali
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) On-site Emergency Planning
) and Safety Issues (Seabrook Station, Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN SUPPORT OF ALAB-853" in the 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,198".
Sheldon J. Wolfe, Esq. , Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC ll0555 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 l Beverly Hollingworth Richard A. Hampe, Esq.
l 209 Winnacunnet Road New Hampshire Civil Defense Agency Hampton, NH 03842 107 Pleasant Street Concord, NH 03301 l
Sandra Gavutis, Chairman Calvin A. Canney, City Manager Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801 i
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Stephen E. Merrill Paul McEachern, Esq.
Attorney General Matthew T. Brock, Esq.**
George Dana Bisbec Shaines a McEachern Assistant Attorney General 25 Maplewood Avenue Office of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear Angie Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls 25 High Road Drinkwater Road Newbury, MA 09150 Hampton Falls, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq. Robert A. Backus, Esq.**
McKay, Murphy and Graham Backus, Meyer a Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.** Philip Ahren, Esq.
Harmon & Weiss Assistant Attorney General 2001 S Street, NW Ofnce of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr., Esq.**
Federal Emergency Management Agency Ropes & Gray 442 J.W. McCormack (POCH) 225 FrankHn Street '
Boston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq. William Armstrong Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter l 500 C Street, SW 10 Front Street l
Washington, DC 20472 Exeter, NH 03833 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel
- Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 l
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e Jane Doughty Docketing and Service Section*
Seacoast Anti Pollution League Office of the Secretary 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555 Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town IIall - Friend Street South Ilampton, NH 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South IIampton, NH 03287 Newburyport, MN 09150 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.
Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street North llampton, NH 03862 Boston, MA 02110 R. K. Gad III, Esq. Mrs. Anne E. Goodman , Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq.
Holmes & Ellis 47 Winnacunnet Road IIampton, NH 03842 A'
Robert G. Perlis Counsel for NRC Staff