ML20214P032

Order Denying Commonwealth of Ma 860702 Motion for Reconsideration of Applicant 860617 Motion for Partial Initial Decision Authorizing Operation of Unit 1 Up to 5% Power & Affirming Applicant Motion.Served on 860916

ML20214P032
Person / Time
Site:	Seabrook
Issue date:	09/15/1986
From:	Harbour J, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel
To:	MASSACHUSETTS, COMMONWEALTH OF, PUBLIC SERVICE CO. OF NEW HAMPSHIRE
References
CON-#386-707 82-471-02-OL, 82-471-2-OL, OL-1, NUDOCS 8609170229
Download: ML20214P032 (9)

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DOCKETED UNITED STATES OF AMERICA UNC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '86 SEP 16 P2 :17 Before Administrative Judges: CFTE' :

< .Sheldon J. Wolfe, Chairman DCCC Emeth A. Luebke Jerry Harbour E /3 SCP1A U $

) Docket Nos. 50-443-0L-1 In the Matter of ) 50-444-OL-1

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PUBLIC SERVICE COMPANY ) (On-Site Emergency Planning 0F~NEW HAMPSHIRE, et al. ) and Safety Issues)

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) (ASLBP No. 82-471-02-0L) -

(Seabrook Station, Units 1 and 2) )

) September 15, 1986 MEMORANDUM AND ORDER (Denying Massachusetts' Motion for Reconsideration, And Affirming The Granting of Applicants' Motion of June 17, 1986, As Modified By The Board)

MEMORANDUM I. Background As reflected in our Memorandum and Order (M&O) of July 25, 1986 (LBP-86-24,24 NRC _), the Applicants had filed a motion on June 17, 1986, requesting that, among other things, if a reopened hearing was ordered, the Board should issue a partial initial decision authorizing operation of Seabrook Unit No.1 up to and including 5% of rated power.

On July 2,1986, the interested Commonwealth of Massachusetts (Mass.)

filed an answer objecting to Applicants' motion for a low power operating license, and simultaneously filed a 10 C.F.R. 92.758 petition 8609170229 86091D PDR ADOCK 05000443 G PDR dSO

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wherein Mass., in effect, requested that the application of 50.47(d) be waived or an exception be made in this proceeding.

In the M&O of July 25, 1986, the Board, inter alia, denied the objection of Mass. because, standing alone, it challenged the Commission's regulations which was barred by s2.758(a). Since the answer of Mass. also relied upon and incorporated by reference its 10

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C.F.R. 92.758 petition, the Board also denied the objection since, as would be reflected in a M&O to be issued thereafter, the Board would deny the 62.758 petition because Mass. had not made a prima facie

. showing that the application of $50.47('d) would not serve the purpose for which the regulation was adopted and that the application of the regulation should be waived or exception granted. The Board proceeded to grant Applicants' motion of June 17, to the extent that in the partial initial decision, the Board would decide, inter alia, whether or not to authorize the requested low power operating license.

On August 15, 1986, Mass. filed a motion requesting that the Board reconsider its M&O of July 25 because the Board had not specifically considered certain objections raised in paragraphs 3, 7, 8, 9 and 10 of the answer of July- 2,1986. On August 27, Applicants responded. On .

September 8, pursuant to the Board's Order of September 3, the Staff 1

responded to Mass.'s fifth objection.

We deny the motion for reconsideration, and, for the reasons discussed below, affirm the granting of Applicants' motion of June 17, 1986, as modified by the Board.

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II. Discussion As its first objection (13 of Mass.' Answer of ' July 2,1986),

Mass. argued that a number of contentions have been wrongfully rejected or wrongly decided by summary disposition and thus the issuance of a low l

power operating license prior to a full evidentiary hearing on such contentions would be violative of the statutory right to a hearing provided by Section 189a of the Atomic Energy Act. Yet in the same breath, in footnotes 1 and 2, Mass. recognized that, under $62.730(f) l and 2.762, parties do not have a right to take an interlocutory appeal from the dismissal of contentions until after a partial initial decision is issued. In any event, the argument is obtuse. If Mass. is challenging the Commission's rules and regulations, a Licensing Board is precluded from considering such attacks. If, on the other hand, it j seeks to have this Board decide that the Comission's rules and regulations are violative of the Atomic Energy Act, this Board is not the proper forum for consideration of such matters because it has neither the jurisdiction ncr authority to consider challenges to Commission rules and regulations on the ground that they are contrary to statute.1 As its second objection (17) Mass argued that, since 650.33(g) requires that an applicant for an operating license must submit 1

10 C.F.R. 62.758(a); see Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 89 (1974).

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radiological emergency response plans of State and local governmental entities etc. as part of its application, it follows that it is a requirement that plans of State and local governments be submitted prior to the issuance of a low power license. However, here the request is not for a full power operating license. Further, the request is not for a temporary operating license under 550.57(d)(iv). Thus, Mass. has failed to cite any pertinent regulation or case law in support of this alleged requirement and the Board knows of none. Accordingly, we conclude that Mass. has failed to bridge this crevasse.

As its third objection (18), Mass argued that not only prior to F

the issuance of a full power operating license but also prior to the issuance of low power operating license, a supplement to the Final Environmental Statement of December 1982 must be prepared pursuant to 10 C.F.R. 951.922 because significant new circumstances and information have developed relevant to environmental concerns and bearing on the proposed action or its impacts. Relying upon the affidavits-appended to its $2.758 petition, Mass. pointed to the Chernobyl accident. However, none of the affidavits state and certainly no definitive studies or reports are cited to evidence that the Chernobyl plant and its safety systems are similar to U. S. nuclear plants and, in any event, any future NRC analyses of the possible significance of the Chernobyl 2

Mass. mistakenly cited $51.72 which addresses only supplements to draft environmental impact statements.

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accident will be generic and cannot be considered as changed circumstances requiring the filing of a supplement to the FEIS for the Seabrook Station. Mass. also asserted that there is a " strong likelihood" that (a) the Seabrook plant will either not be licensed to operate at full power because the State and local governments may not participate in emergency planning or, if licensed, (b) such a license will be conditioned so that the plant will not be permitted to operate during the summer months or (c) will not be permitted to operate unless shelters are built along the beaches in the emergency planning zone.

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Thus, Mass. argued that these three alternatives must be weighed in a cost-benefit analysis in a supplement to the FES. However, this part of ,

the argument is based upon mere speculation -- none of the appended affidavits assert that there is a " strong likelihood" that any of these alternatives will occur. Moreover, this. kind of argument has been rejected by the Commission. The Commission has held that uncertainty about the ultimate disposition of off-site emergency planning issues is not a changed circumstance for the purposes of NEPA. The Commission has also held that the effects of low-power testing are subsumed in the FEIS's analysis of the far greater, but nonetheless very small impacts from full-power operation, and thus the benefits of low-power operation clearly outweigh the environmental costs.3

.Long Island Lighting Company (Shoreham Nuclear Power Station),

CLI-84-9, 19 NRC 1323, 1326-27 (1984), and CLI-85-12, 21 NRC 1587, 1590(1985).

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6-As its four.th objection (19), Mass, argued that 550.47(b)(5)4 has not been complied with because the design number of notification sirens are not in place in the towns of Merrimac, Rye and South Hampton and 4

10 C.F.R. 550.47 provides in pertinent part:

(a)(1) Except as provided in paragraph (d) of this section, no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reason-able assurance that adequate protective measures can and will -

be taken in the event of a radiological emergency.

- (b) The onsite and, except as provided in paragraph (d) of this section, off-site emergency response plans for nuclear power reactors must meet the following standards:

(5)Procedureshavebeenestablishedfornotification,by the licensee, of State and local response organizations and for notification of emergency personnel by all organizations; the content of initial and followup messages to response ,

organizations and the public has been established; and means to provide early notification and clear instruction to the populace within the plume exposure pathway Emergacy Planning Zone have been established.

(d) Notwithstanding the requirements of paragraphs (a) and (b) of this section, no NRC or FEMA review, findings, or determinations concerning the state of offsite emergency preparedness or the adequecy of and capability to implement State and local offsite emergency plans are required prior to issuance of an operating license authorizing only fuel loading and/or low power operations (up to 5% of the rated power).

I Insofar as emergency planning and preparedness requirements I are concerned, a license authorizing fuel loading and/or low power operation may be issued after a finding is made by the NRC that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can i and will be taken in the event of a radiological emergency, i The NRC will base this finding on its assessment of the applicant's emergency plans against the pertinent standards in paragraph (b) of this section and Appendix E of this part.

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~l there are neither procedures nor adequate communications equipment in place for notification by the licensee of the Massachusetts local response organizations. We note that, in substance, 550.47(d) provides that, prior to the issuance of a low power operating license, the NRC must find that the state of on-site emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of radiological emergency, and that such a finding should be based on an assessment of the applicant's emergency plans against the pertinent standards in 1 (b) of that section. The standard

.in 1 (b) of 550.47 is not pertinent because it is not an issue in controversy in this proceeding. We have reopened the record for the limited purpose of supplementing the evidence taken during the August 1983 hearing upon NECNP Contention 1.B.2 (environmental qualification of electrical equipment), and upon NECNP Contention III.1 and NH Contention 20 (emergency classification and action level schemes), and to take evidence upon SAPL Supplemental Contention 6 (Safety Parameter Display System).5 Thus, the fourth objection is l

without merit.

As its fifth objection (1 10), Mass. urged that 1 C(6) of the draft low power license, which had been proposed by the NRC under cover of a i

5 j See Order of November 4,1985 (unpublished); Memorandum and Order of July (1986); Memorandum and Order

' 25, 1936, of September LBP-86-24, 15, 1986, 2424NRC LBP-86-30, NR _ C _ (1986).

I letter to the Applicants dated June 20, 1986,6 was improper since Applicants would be regulated by an inapplicable regulation, namely 650.54(s)(2), which carries a lesser guarantee of public safety. Mass.

argued that the provisions of that regulation apply only to operating reactors licensed prior to April 1,1981. The Staff responded that findings on on-site emergency planning are not required for operating licenses restricted (as here) to 5% or less of rated power, that, in order to secure a full power operating license, Applicants must show compliance with $50.47, and, that once a full power operating license

-has been issued, Applicants must continue to provide reasonable assurance that adequate emergency response measures can be taken or the provisions of 650.54(s)(2) will come into play. Apparently, and it is by no means clear, the Staff argues that F. ass.'s objection is irrelevant since only a draft low power license is in issue and thus $50.54(s)(2) is not applicable with respect thereto. We agree. However, parenthetically, while we wonder why then the draft low power license refers to 650.54(s)(2), Mass. has no grounds for complaint inasmuch as Applicants do not object and thus have agreed in advance to be bound by the provisions of that section after they have secured a full power operating license.

6 On August 14, 1986, the Staff submitted a copy of Draft License No.

NPF-56 to the Board.

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ORDER In light of the foregoing discussion, the Commonwealth of Massachusetts' motion for reconsideration is denied and the Board's Memorandum and Order of July 25, 1986, which had granted Applicant's motion of June 17,1986 (as modified), is affirmed.

THE ATOMIC SAFETY LICENSING BOARD hAth olhfe ,'KFiairman She'idon J b

ADMINIST IVE JUDGE

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Jerr4 arbouf AD ISTRAT1VE JUDGE 9

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Emmeth A. Luebke ADMINISTRATIVE JUDGE l

I Dated at Bethesda, Maryland

! this 15th' day of September, 1986.