ML20214A774
| ML20214A774 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/14/1986 |
| From: | Perlis R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#486-1544 OL-1, NUDOCS 8611200228 | |
| Download: ML20214A774 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 NOV 17 All :41 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
$0CS Uit i In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443 OL-1 NEW IIAMPSHIRE, et al.
)
50-444 OL-1
)
On-site Emergency Planning (Seabrook Station, Units 1 and 2)
)
and Safety Issues NRC STAFF BRIEF IN OPPOSITION TO SEACOAST ANTI-POLLUTION LEAGUE'S APPEAL FROM THE LICENSING BOARD'S ORDER OF OCTOBER 7,1986 Robert G. Perlis Counsel for NRC Staff Movember 14, 1986 8611200228 e61114 PDR ADOCK 05000443 07 G
DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 NOV 17 All :41 BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD
=
In the Matter of
)
)
9 PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443 OL-1 NEW IIAMPSHIRE, et al.
)
50-444 OL-1
)
On-site Emergency Planning (Seabrook Station, Units 1 and 2)
)
and Safety Issues NRC STAFF BRIEF IN OPPOSITION TO SEACOAST ANTI-POLLUTION LEAGUE'S APPEAL FROM THE LICENSING BOARD'S ORDER OF OCTOBER 7,1986 Robert G. Perlis Counsel for NP.C Staff l
t a
Movember 14, 1986 I
11/14/86 UNITFD STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443 OL-1 NEW HAMPSHIRE, et al.
)
50-444 OL-1
)
On-site Emergency Planning (Seabrook Station, Units 1 and 2)
)
and Safety Issues NRC STAFF BRIEF IN OPPOSITION TO SEACOAST ANTI-POLLUTION LEAGUE'S APPEAL FROM THE LICENSING BOARD'S ORDER OF OCTOBER 7,1986 I.
STATEMENT OF THE CASE On August 22, 1986, the Applicants in the Seabrook proceeding filed a motion before the Licensing Board pursuant to 10 CFR I 50.57(c) for authori::ation of an operatine license that would allow the Applicants to load fuel and conduct precriticality testing at Seabrook in advance of the completion of litigation of certain onsite emergency planning and safety issues. II The Seacoast Anti-Pollution League ("SAPL") filed a response opposing the motion on August 29th; the Attorney General of Massachusetts
(" Massachusetts") filed its opposition on September 3rd.
-1/
The onsite emergency planning and safety issues remaining before the Licensing Board deal with the time duration for the environmental qualification of electrical equipment, the acceptability of deferring various additions to the safety parameter display system until after the first refueling outage, and the acceptability of a
Applicants' emergency classification scheme.
The record before the Licensing Board was closed with respect to these items on October 3, 1986.
Offsite emergency planning issues remain before the Licensing Board, but resolution of these issues is not needed for issuance of an operating license which does not authorize operation at power levels greater than 5% of rated power. Sec 10 CFR 550.47(d).
m -
The Staff filed its response on September 8th, and filed a supplemental
)
affidavit on September 18th; the Staff supported Applicants' motion.
On October 7th, the Licensing Board issued an Order (LDP-86-34) granting the requested authorization.
On October 16th, Massachusetts filed an application for a stay of, and a brief in support of an appeal from, the Licensing Board's Order; the sole issue raised by the stay request and appeal was the interrelationship of Sections 50.33(g) and 50.47(d) of the Commission's regulations.
The stay request was summarily denied on October 17th.
On October 21st, SAPL filed a notice of joinder in Massachusetts' 2_/
On October 24th, the Staff and Applicants filed briefs in appeal.
opposition to the appeal; on October 29th, SAPL filed its brief.
SAPL's brief not only addressed the issue raised by Massachusetts, but raised additional issues as well.
Oral argument was held on the Massachusetts appeal on October 31st.
At that argument, the Appeal Board directed that the parties respond to the additional issues raised in SAPL's brief by November 14th.
In accordance with that directive, the Staff files the instant brief and, for the reasons ; presented below, submits that SAPL's appeal should be denied.
-2/
The Appeal Board initiated a telephone conference call on October 24th to discuss the implications of SAPL's notice of appeal.
During 1
that call, the Appeal Board rescheduled the oral argument on Massachusetts' appeal to October 31st; ordered SAPL to file its brief by October 29th; and indicated that, to the extent SAPL raised issues in its brief beyond the single issue raised by Massachusetts, the other parties would be given a later opportunity to respond to those additional issues.
II.
ARGUMENT SAPL raises three new arguments in its appeal in addition to
)
i addressing the issue raised bv Massachusetts.
First, SAPL asserts that the Licensing Board committed error in issuing LBP-86-34 without first making independent findings on the state of onsite emergency preparedness at the Seabrook facility.
Brief at 6-7.
Next, SAPL argues that a portion of its Contention G was relevant to the activities to be conducted under the requested license to load fuel and conduct precriticality testing, and hence the license could not have been authorized pursuant to 10 CFR 550.57(c).
Id. at 8.
Finally, SAPL arguee that the Applicants have not proved that an inadvertent criticality could not occur, and that if such a criticality could occur, SAPL's "due process rights to meaningful review of the on-site safety issues litigated by the parties before the Licensing Board in October would be seriously impaired."
Id.
All three of these arguments are addressed below seristim; none of the arguments is persuasive.
I A.
Onsite Findings I
SAPL argues that the Licensing Board erred in authorizing issuance l
of the license without first making a finding that "the state of on-site emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken." Brief at 6.
As authority for
~
T this argument, SAPL points to the statement made by the Commission i
j when adopting Section 50.47(d) to the effect that the NRC will review l
onsite emergency plans before issuing low-power operating licenses, d.
at 7, citing 47 Fed. RS. 30234 (July 13,1982).
Even assuming that SAPL is correct in its argument that a finding that onsite emergency planning is adequate is needed before a low-power license may be issued, b SAPL's argument fails in its assertion that the Licensing Board is the entity required to make that finding.
Section 50.57(c), which authorizes the issuance of low-power licenses prior to the completion of all licensing hearings, specifically states in part:
... Prior to talring any action on such a motion
[for authorization of issuspco of a low-power license] which any party opposes, the presiding officer shall make findings on the matters specified in paragraph (a) of this section as to which there is a controversy, in the form of an initial decision with respect to the contested activity sought to be authorized.
The Director of Nuclear Reactor Regulation will make findings on all other matters specified in paragraph (a) of this section....(emphasis added)
Contrary to SAPL's assertion, there was no matter in controversy before the Board with respect to onsite emergency planning during fuel load and precriticality activities.
The Board properly found that the " matters in controversy" mentioned in Section 50.57(c) refer to admitted contentions.
LE P-86-34, Slip Op. at 7.
Only two admitted contentions (NECNP III.1 and New Hampshire 20) raise onsite emergency planning issues.
No party contended that those contentions, which both involve l
the Applicants' emergency classification scheme, were relevant to the
-3/
It is clear that findings on onsite emergency planning are needed 3
before a license to operate at 5% of rated power may be issued.
It is less clear that such findings are needed before a license may be issued to load fuel.
That issue need not be reached here, because findings on the adequacy of onsite planning were in fact made.
See Section 13 of Supplements 1 and 4 to the Seabrook Safety Evaluation Report.
- activities to be authorized under the terms of the requested license, b Under the circumstances, the Board properly left those onsite emergency
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preparedness findings that needed to be made to the NRC Staff.
The Staff has reviewed the state of onsite emergency planning at Scabrook and found it adequate.
See Section 13 to Supplements 1 and 4 of the Seabrook Safety Evaluation Report.
No party has filed a timely (or untimely) contention challenging the findings in either Supplement; no contentions raising any onsite emergency planning matters survive except the two contentions raising the emergency classification issue.
SAPL's argument in essence would require the Licensing Board to make findings on issues not in controversy and not the subject of contentions.
The Board properly found that any such findings are to be made by the Staff.
The Staff has made the findings called for by Section 6_/
including any required findings dealing with onsite 50.57(a),
i
-4/
SAPL does not appear to be arguing in its brief that the Board erred in finding that these contentions were not relevant to the activities to be authorized.
In any event, SAPL did not make any such argument below.
5_/
The Commission's regulations indicate that a Licensing Board only has jurisdiction to rule on matters properly placed in controversy by the parties or on matters raised sua sponte that raise serious safety, environmental, or common defense and security issues.
See 10 CFR 82.760a; see also Union Electric Company (Callaway Plant, Unit 1),
ALAB-750, 18 NRC
- 1205, 1216-17 (1983),
citing Consolidated Edison Co. of New York (Indian Point,
Units 1,
2 and 3),
ALAB-319, 3 NRC 188,189-190 (1976).
~6/
In brief, Section 50.57(a) requires that the following findings must be made before an operating license may be issued:
(1)
Construction of the facility has been completed in conformance with the construction permit, the application, the Atomic Energy Act and the Commission's regulations; (FOOTNOTE CONTINUED ON NEXT PAGE)
-.n
--_,----n-emergericy preparedness.
This portion of SAPL's appeal should be rejected.
B.
Relevance of Contention 6 SAPL Contention G asserted inadequacies in the control room design review for Seabrook.
On July 25, 1986, Applicants filed a motion for summary disposition of Contention 6.
The Staff and SAPL responded; on September 15th, the Licensing Board issued a Memorandum and Order (LDP-86-30) denying in part and granting in part Applicants' motion.
In brief, the Licensing Board granted dismissal of that portion of the contention which claimed that the control room design review was inadequate, and left standing that portion of the contention which contended that various additions to the safety parameter display system (SPDS) should be completed before the end of the first refueling outage.
In LDP-86-34, the Board found that the SPDS portion of Contention 6 is not relevant to the activities under the fuel loading and precriticality license.
Slip Op. at 5, note 4.
SAPL does not challenge this finding in its brief.
Instead, SAPL contends that the dismissed portion of (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
(2) The facility will operate in conformance with the application, the Act and the regulations; (3) There is reasonable assurance that the activities under the license will not endanger the public health and safety and will be conducted in conformance with the regulations; (4) The applicant is technically qualified to engage in the activities authorized; (5) The applicable indemnification requirements have been met; and (6) Issuance of the license will not be inimical to the common defense and security or the public health and safety.
,n-Contention 6 is relevant to the activities under the license, and appears to be arguing (although the point is by no means clear) that the grant of authorization of the license " deprive [d] SAPL of the right to seek redress at the appropriate point in future of the denial of hearing on this Issue..."
Drief at 8.
The Staff simply can not understand the issue being raised here. If SAPL contends the dismissed portion of Contention 6 is relevant to fuel loading and precriticality testing, then that party should have appealed 4
the Order granting summary disposition (LDP-86-30) when the Order granting authorization for a license (LEP-86-34) was issued.
Yet SAPL has never filed an appeal from the issues decided in LBP-86-30, and its brief contains no clues as to why that ruling might have been in error. U If the control room design review is relevant to fuel loading and precriticality testing (a question upon which the Staff has I
considerable doubt), the Licensing Board made the required findings to resolve the matter in controversy when it issued its ruling on summary disposition.
SAPL has provided the Appeal Board with no reason to question the Licensing Board's resolution of this issue.
This portion of SAPL's appeal should be dismissed.
l l
7/
If SAPL's brief is meant to now raise an appeal from the grant of summary disposition, the brief is woefully inadequate.
To support an appeal, errors of fact or law must be clearly set forth.
See 10 CFR 52.762(d)(1).
Bald allegations of error, without explanation, do not suffice and will not be considered.
See
- g..,
e Duke Power Co. (Catarba Station, Units 1 and 2), ALAB-825, 22 IIRC 785, 793 (1985); Public Service Electric and Gas Co.
(Salem Station, Unit 1), ALAB-650,14 NRC 43, 49-50 (1981).
l C.
Possible Inadvertent Criticality Finally, SAPL argues that there is always the possibility of an inadvertent criticality, and hence no license can be issued before contentions relevant to criticality are resolved.
Brief at 8-9.
In assessing this argument, it is worth noting that SAPL has never challenged before, and does not appear to challenge now, either the affidavits submitted by the Applicants along with their motion for a fuel loading and precriticality testing license or the two affidavits submitted by the Staff in response to Applicants' motion.
Nor has SAPL ever attempted to file a contention challenging operation under the terms of the proposed license.
Instead, SAPL alleges that, no matter how improbable, there is a possibility that an inadvertent criticality could occur.
Even if it is assumed that SAPL is correct that there is some mathematical possibility that an inadvertent criticality could occur, that fact alone does not indicate error below.
The Licensing Board was required to resolve those issues in controversy before it relevant to the activities under the requested license.
Issues in controversy before a Board arc delineated by contentions.
As the Licensing Board recognized in LBP-86-34 (at 8-9), SAPL did not proffer any contention with respect to inadvertent criticality. -
'-8/
The requirement to file contentions is more than a mere formality.
In filing a contention, a party must not only meet various timeliness requirement s, but must provide a factual and regulatory basis for the proffered contention as well.
In the papers submitted by SAPL to date, that party has neither provided a sufficient factual basis to support its concern, nor has that party articulated any legal standard that would require as a matter of law that an inadvertent criticality be a factual imoossibility in order for a license to issue, i
_g-There being no issue in controversy before the Licensing Board with respect to inadvertent criticality, the responsibilty to make the Section 50.57(a) findings relative to this issue (if any) fell upon the Staff.
Insofar as those findings might be relevant to the question of an inadvertent criticality (see note 5, supra), the Staff has reviewed the proposed means of maintaining boron concentration above 2000 parts per million and has found that those means provide reasonable assurance that an inadvertent criticality will not occur and the activities under the proposed license will not adversely affect the public health and safety.
See Affidavit of Warren C.
Lyon, T 10 (September 18, 1986).
SAPL neither provides a factual basis to challenge this conclusion, nor has SAPL attempted to show that, in light of this conclusion, the requisite Section 50.57(a) findings can not be made. This portion of SAPL's appeal should therefore be dismissed.
III.
CONCLUSION For the reasons presented
- above, the additional arguments (unrelated to the issue raised by the Massachusetts appeal) advanced by i
SAPL in its brief are without merit and should be dismissed.
l Respectfully submitted, Y}/'/
- 7
//
l l
Robert G. Perlis 3
Counsel for NPC Staff Dated at Bethesda, Maryland l
this 14th day of November,1986 l
l
00LKETED l
UiNRC
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UNITED STATES OF AMERICA
'06 N0Y I7 bl141 NUCLEAR REriULATORY COMMISSION p n r-
_t e
4""' i BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD.
.,w In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443 OL-1 NEW HAMPSIIIRE, et al.
)
50-444 OL-1
)
On-site Emergency Planning (Seabrook Station, Units 1 and 2)
)
and Safety Issues CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO SEACOAST ANTI-POLLUTION LEAGUE'S APPEAL FROM THE LICENSING BOARD'S ORDER OF OCTOBER 7,1986" 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 14th day of November, 1986.
4 Sheldon J. Wolfe, Chairman
- Dr. Emmeth A. Luehke*
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, D.C.
20555 Washington, D.C.
20555 Dr. Jerry Harbour
- Carol Sneider 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, D.C.
20555 Boston, MA,02108 i
Beverly Hollingworth Stephen E. Merrill l
209 Winnacunnet Road Attorney General l
llampton, NH 03842 George Dana Bisbee Assistant Attorney General l
Sandra Gavutis, Chairman Office of the Attorney General l
Board of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, NH 03301-6397 3
Kensington, NH 03827 Judith H. Mizner, ESq.
Richard A. Hampe, Esq.
Silverglate, Gertner, Baker New Hampshire Civil Defense Agency Fine and Good 107 Pleasant Street 88 Broad Street Concord, NH 03301 Boston, MA 02110 l
I Calvin A. Canney, City Manager Allen Lampert City IIall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Charles P. Graham, Esq.
President and Chief Executive Officer McKay, Murphy and Graham Public Service Co. of New Hampshire 100 Main Street P.O. Box 330 Amesbury, MA 01913 Manchester, NH 05105 Diane Curran, Esq.
Robert A. Backus, Esq.
Harmon & Weiss Backus, Meyer & Solomon 2001 S Street, N.W.
116 Lowell Street Suite 430 Manchester, NH 03106 Washington, D.C.
20009 Edward A. Thomas Philip Ahrens, Esq.
Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH)
Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq.
Thomas G. Dignan, Jr., Esq.
Assistant General Counsel Ropes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W.
Boston, MA 02110 Washington, D.C.
20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board
- 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, D.C.
20555 Atomic Safety and Licensing Paul McEachern, Esq.
(
Appeal Panel
- Matthew T. Brock, Esq.
U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C.
20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03601 Docketfilg and Service Section*
William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C.
20555 10 Front Street Exeter, NH 03833 Maynard L. Young, Chairman Board of Selectmen Peter J. Matthews, Mayor 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 flichael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectment South Hampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 fir. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 Horth Hampton, NH 03862 R. K. Gad III, Esq.
Gary W. Holmer, Esq.
Ropes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Doston, MA 02110 Hampton, NH 03842 Robert G. Perlis Counsel for NRC Staff l
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