ML20214T315

From kanterella
Jump to navigation Jump to search
on Appeal from Partial Initial Decision of ASLB Issued 870325.* Decision Should Be Affirmed.Certificate of Svc Encl
ML20214T315
Person / Time
Site: Seabrook NextEra Energy icon.png
Issue date: 06/03/1987
From: Dignan T
PUBLIC SERVICE CO. OF NEW HAMPSHIRE
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#287-3698 OL-1, NUDOCS 8706100202
Download: ML20214T315 (36)
v • d • e


Text

-

36f 7 y xyij :

'87 JW -8 P3 54 June 3, 198_,

6FF:. // t UNITED SIEATE5[pFl AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

)

PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL-1 OF NEW ll AM PSill R E , ET AL. ) 50-443-OL-1

)

(Seabrook Station, Units 1 ) (Onsite Emergency and 2) ) Planning and Safety

) Issues)

)

ON APPEAL FROM A PARTIAL INITIAL DECISION OF THE A TOMIC SAFET)' AND LICENSING BOARD ISSUED MARCH 25, 198i BRIEF OF APPLICANTS Thomas G. Dignan, Jr.

George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants 8706100202 870603 PDR ADOCK 05000443 G O)

)

PDR

}- +

g-TABLE OF CONTENTS TABLE'OF' AUTHORITIES ................................... iii

-PRIOR PROCEEDINGS'........................................ 1

' STATEMENT OF ISSUES ...................................... 5 ARGUMENT:................................................. 6

.I. NO ERROR'WAS COMMITTED IN THE EXCLUSION OF ANY.OF THE'NECNP CONTENTIONS AT ISSUE.............-........................... 6 A. The Quality Assurance Contentions Were Properly Excluded........................ 6

~

.B. The Steam Generator Tube Contention was Properly Excluded........................ 11 C.'The' Cooling System Surveillance Contention was Properly Rejected...~.......... 12 II. THE LICENSING BOARD'S ACTION IN GRANTING-

SUMMARY

DISPOSITION WITH RESPECT i TO CONTENTION SAPL' SUPP. III WAS CORRECT........ 14 i

III. THERE WAS NO ERROR IN THE LICENSING BOARD'S RESOLUTION OF THE FULLY LITIGATED ISSUES................................ 17

! _A.'The Environmental Qualification j Issue........................................ 17 i

l. 'B. The SPDS Issue was Correctly Resolved..................................... 19 1'

L IV. THE REFUSAL TO REOPEN THE RECORD ON SIRENS I. WAS ENTIRELY PROPER............................. 22 V. THE LICENSING BOARD PROPERLY DENIED MASS AG'S PETITION FOR WAIVER OF 10 CFR 50.47(d)................................. 25 VI. THE REMAINING ISSUES ARE FORECLOSED BY PRIOR PRFCEDENT BINDING ON THIS APPEAL BOARD.................................... 27

m CONCLUSION ...................,,,,,,,,,,,,,, _

11 .

+

s, -

TABLE OF AUTHORITIES Cases Cuomo v. NRC,.772 F.2d 972 (D.C. Cir 1985) .............. 27

' Administrative Decisions Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2),

CLI-74-12, 7 AEC 203 (1974) ......................... 7 ALAB-182, 7 AEC 210 (1974) .......................... 7 Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2),

CLI-86-8, 23 NRC 241 (1986) ........................ 24 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-674, 15 NRC 1101 (1982) .............. 7 Gulf States Utilities Co. .(River Bend Station,' .

Units 1 and 2, ALAB-444,~6 NRC 760 (1977)-.......... 11 Houston Lighting & Power Co. (South Texas Project,. Units 1 and 2),

ALAB-575, 11 NRC 14 (1980)........................... 7 LBP-79-27, 10 NRC 563 (1979) ........................ 7 Long Island Lighting Co. (Shoreham Nuclear Power Station, Units 1)

CLI-85-12, 21 NCR 1587 (1985) .................. 26,27 CLI-85-1, 21 NRC 275 (1985) ........................ 26 CLI-84-9, 19 NRC 1323 (1984) ................... 26,27 CLI-83-17, 17 NRC 1032 (1983) ..................... 26 Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3)

ALAB-732, 17 NRC 1076 (1983) ....................... 24 Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982) ................................. 24 Nuclear Fuel Services, Inc. (West Valley iii

3

'f 4,

~

Reprocessing Plant), CLI-75-4,.1 NRC 273'(1975)-... 23 Public Service Company of New Hampshire

-(Seabrook Station, Units 1 and 2),

.ALAB-865, 25 NRC (May 8, 1987) ........ 20,21,27 ALAB-442,.6 NRC 728 (1977) ......................... 12.

LBP-87-10, 25LNRC (March 25, 1987) ...... 5,19,21 LBP-87-3, 25-NRC (Feb. 6, 1987)'............... 5 LBP-82-76, 16 NRC 1029 (1982) ............... 2,3,13,14 LBP-76-26, 3 NRC 857 (1976) ...................... 6,13 ASLB Mem.-and Ord., unpublished,

_(March 25, 1987) .............................. 5,23,24 ASLB Mem. and Ord., unpublished, (March 23, 1987) .................................... 5 ASLB Mem. and Ord., unpublished, (July 30, 1986 ...................................... 4.

ASLB Mem. and Ord., unpublished,

_(July 25, 1986) ..................................... 4 ASLB Mem. and Ord., unpublished, (May 11, 1983) ...................................... 3 ASLB Mem. and Ord., unpublished, (Sept. 13, 1982) .................................... 2 Petition foriEmergency and Remedial Action, CLI-78-6, '7 NRC 400-(1978) ......................... 12 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),.

ALAB-806, 21 NRC~1183 (1985) ...................... 23 ALAB-804, 21 NRC 587 (1985) ......................... 7 ALAB-785,-20 NRC 848 (1984) ........................ 7 Vermont Yankee Nuclear Power Station, (Vermont Yankee Nuclear Power Station),

. .CLI-74-43, 8 AEC 826 (1974) ........................ 12  :

CLI-74-40, 8 AEC 809 (1974) ........................ 12 ALAB-229, 8 AEC 425 (1974) ......................... 14 iv

7;. '

y

' Regulations

. n.

10 CFR-2.-715 (c) .

......................................... 1

ua CFR 2.720- (h)(2)(i) ................................. 20 lo CFR 2.734;(a)(1) and (d) ............................. 23 10 CFR 2.734 (a)(2) .................................... 24 10 CFR 2.758 ............................................ 4 10 CFR 2.758(b) ......................................... 26

, .0 1 CFR.50.47(d) .............................. 13,4,25,26,27 46 Fed.' Reg. 40101 ...................................... 2 46 Fed. Reg. 51331 ....................................... 1 4

t 4

?

V

. , . - --. . .-,- . . . . . - = _ _ - . . _ _ . , _ - . - _ , . . - . - . . _ . . . - . . . , . . . - . . . . . , .

w q_! b '.,

s

. UNITED STATES OF AMERICA-

> NUCLEAR' REGULATORY COMMISSION Ebefore the-I

. ATOMIC ' SAFETY ' AND LICENSING APPEAL' BOARD

)

Inthe Matter of )

)

-PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL OF-NEW HAMPSHIRE, ET AL.

. ) 50-443-OL-1

)

(Seabrook: Station, Units 1 ) -(Onsite Emergency and12) ) Planning 'and Safety

) Issues)

)

ON APPEAL FRON A PARTIAL INITIAL DECISION OF THE

- ATOMIC SAFETl' AND LICENSINO BOARD ISSUED MARCH 25. 1987 BRIEF OF APPLICANTS PRIOR PROCEEDINGS Set forth below is a description of the procedural matters relevant to the issues raised in this appeal.

Tha operating license proceeding for Seabrook Station commenced with a notice of hearing published in the Federal Register on October 19, 1981.1 Various parties sought, and were permitted, to intervene or to participate as an interested state pursuant to 10 CFR 2.715(c). Included among the admitted participants were the appellants, New 2 46 Fed. Reg. 51331 (Oct. 19, 1981).

4 3

England- Coalition on Nuclear Pollution ~ (NECNP), the Seacoast _ Anti-Pollution League (SAPL) and ~t he Attorney General of the Commonwealth of Massachusetts (Mass. AG).

NECNP petitioned, inter alia, for the admission'of contentions . with respect to quality assurance, steam generator ~ tube inspection, and a surveillance and maintenance program to contain fouling by marine organisms of the Seabrook cooling system.2 In a Memorandum and Order issued September 13, 1982, the Licensing Board excluded each of these proposed contentions.8 In that same Memorandum and Order, the Licensing Board admitted a contention _ proffered by SAPL (SAPL Supp. III) to the effect that the requirements of a Commission Policy Statement,*

with respect to the discussion of beyond design basis 3 See NECNP Supplemen tal Petition for Leave to Intervene ( April 21, 1982); NECNP's Reply to the Responses by The Applican t and the NRC Staff to NECNP's Contentions (June 17, 1982); NECNP's Supplemen tal Con ten tions (June 17, 1982). The particular contentions referenced in the text are. No. I.V (steam generator tube inspection program),

No.II.A.I (quality assurance program for design and construction), No. II.A.2 (quality assurance for operations as pertains to "important to safety"), No. IV (surveillance program for prevention of accumulation of aquatic organisms in the cooling system). A more complete statement of these contentions and the alleged basis therefore appears in the substantive discussion of them in the Argument, in fra .

- 3 Public Service Company of New Hampshire ( Seabrook

-Station, Units 1 and 2), LBP-82-76, 16 NRC 1029 (1982).

The particular rulings appear at pages 1067-68 (No. I.V),

1069-70 (No. II.A.1), 1072 (No. II.B.2), and 1075 (No.IV).

4 -Nuclear Power Plant Accident Considerations Under the National Envi ronmen tal Policy Act of 1969, Interim Policy Statement, 45 Fed. Reg. 40101 (June 13, 1980).

2

-, - ., . , _ _ - _ - ~ .__

F N-e accidents in .NRC Environmental -Impact Statements, had not been met.s This contention was disposed of in favor of the Applicants on1 cross-motions for Summary Disposition.*

During_- 1983, evidentiary hearings were held on the

'several admitted contentions. Thereafter a hiatus in the case occurred due to the fact that the . Applicants

' experienced' financial difficulties which dictated ~a halt in the construction of the facility.-

.On June 17,L198G, the Applicants filed a motion for the issuance of a low power operating license.7 Several-

! parties, . including- -Mass AG, filed oppositions to- the motion. In his' opposition,a Mass AG argued, inter alia, that the motion forl low power ~ operation should not be granted'hecause (1) . Contention SAPL Supp. III had been wrongly disposed of on-Summary Disposition, and (2) 10 CFR 50.47(d) wh'ich authorizes issuance. of low power operating licenses prior to full resolution of all emergency planning issues was invalid. Alternatively, Mass-AG sought a 10 CFR s LBP-82-76, Supra, at 1082.

  • ^ASLB Memorandum and Order, unpublished, (May 11, 1983) at 10, 30-35.

T Applicants' Motion for Incorporation of Certain Materials in Record; for Closing of Record; and for.

Issuance of Partial Initial Decision Authorizing Issuance of Qpera ting License for Qperation not in Excess of 5% of Ra ted Power ( June 17, 1986).

  • Answer of A t torney General Francis X. Bellotti to

' Applicants' Nation for Issuance of Qperating License for

.Qperation not in Excess of 5% Rated Power (July 2, 1986).

3

. 2.758 waiver of 10 CFR'50.47(d).' On July 25, 1986, the

. Licensing Board, in an unpublished Memorandum and Order,

. rejected the Attorney General's argument that 10 CFR 50.47(d)-was an invalid regulation, and also announced that

- the Board would issue an order -denying Mass AG's 10 CFR 2.758 petition.to It did so on July 30, 1986.81

- Evidentiary hearings on the remaining safety (as distinguished from offsite emergency planning) issues were t

- held from September 29 to October 1, 1986, at which time the evidentiary record was closed.88 While the Licensing Board had the authorization of low

- power operation sub judice, Mass AG moved,-on January 12, .

.1987 to reopen the record on the question of the adequacy of the early warning system (sirens) in-'the Town of Merrimac, . Massachusetts.18 On February 6, 1987, the

  • Peti tion of At torney General Francis X. Bellotti to Revoke Regula tion 50. 4 7(d) or in the Alternative to Suspend

- its Application in the Seabrook Licensing Proceeding (July j 2, 1987).

to ASLB Nemorandum and Order (Rulings on Applicants '

Notion of June 17, 1986 on TH's Motion of June 23, 1986, and on Hearing Natters), unpublished, (July 25, 1986) at 7-

10. ,

11 ASLB Memorandum and Order (Denying M a ssachusetts 10 CFR 2. 758 Pe ti tion), unpublished, (July 30, 1986), passim.

1* Tr. 1026 (Oct. 3, 1986).

33 Contention of A t torney General Francis X. Bellotti and Motion to Admit Late Filed Contention, Reopen the

- Record in the On-Site Emergency Planning Phase of This Proceeding, and' Condi tion the Issuance of a License for Operation not in Excess of 5% Rated Power on Applicants' Compliance Wi th ' 10 CFR 50. 4 7(b)(5) (Jan. 12, 1987).  ;

4 I

w , ,m,. , ,-. , , . , . , - - - , - w -. - - . . ~ , - , , -,,ww, ,.f+.-- ,v.-..- y- , ,-,.3-.-.. ~.

o Licensing Board denied the motion.** On'the same day, as.a

-result of a test which had been made of the sirens in East Kingston, New Hampshire, SAPL also moved to reopen the record 85 On March 3, '1987, Mass AG sought reconsideration of.his motion suggesting a revised basis.15 The Licensing Board denied both motions.17 On March 25, 1987, the Partial Initial Decision, from which-the appeals at bar are taken, was issued.t*

STATEMENT OF ISSUES

1. Did'the Licensing Board commit rev'ersible' error when it excluded the NECNP contentions on quality assurance, steam generator tubes,. and the mollusk surveillance program?
2. .Did the Licensing Board commit reversible error in granting summary disposition of SAPL Contention Supp.

III?

    • Public Service Company- of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC __ (Feb. 6, 1987),

ss Seacoast Anti-Pollution League's Contention and Nation to Admit Late Filed contention, Roopen the Record on On-Site Emergency Planning, and Condi tion the Issuance of n License up to 5% of Ra ted power on Applicants ' Compilance Wi th 10 CFR 50.47(b)(5) (Feb. 6, 1987).

la Nation of Attorney General James M. Shannon to Reconsider La te-Filed Contention Wi th Revised Basis and To Reopen the Record (Mar. 3, 1987).

17 .ASLB Nemorandum and Order, unpublished, (March 23,

. 1987); ASLB Memorandum and Order (Denying Mass. Motion of

. Narch 3, 1987), unpublished, (March 25, 1987).

'* Public Service Company of New Hampshire (Seabroch Station. Units 1 and 2), LBP-87-10, 25 NRC (March 25, 1987).

5

{.

3. Was .any reversible error committed by'the Licensing Board..in' resolving the SPDS and Environmental Qualification contentions?
4. Was it reversible error to deny the motions to reopen the' record on the-late filed siren issues?
5. Was any legal error: committed by authorizing low power operation despite-the lack of'a separate environmental impact statement addressing that matter and : prior to resolution of all issues raised with respect to full power operation?

ARGUMENT I. NO ERROR WAS COMMITTED IN THE EXCLUSION OF ANY OF THE NECNP CONTENTIONS AT ISSUE A. The Quality Assurance Contentions were Properly Excluded NECNP. Contention II.A.18' sought to litigate the question'of whether the quality assurance program for the design and construction of Seabrook Station was in conformity with applicable regulations. The adequacy of the Seabrook design and construction Quality Assurance Program was open for litigation at the construction permit stage, and was found to be adequate by the Licensing Board in that proceeding.** NECNP was a full and active party to that proceeding and was precluded from relitigating that

    • The contention is quoted at page 7 of NECNP's Brief herein.

6

F a

issue at the operating stage by the doctrines of repose.**

It is settled that absent new evidence or a change in applicable standards an operating license proceeding is not intended to provide a forum for the reconsideration of matters falling within the scope of the construction permit proceeding.88 NECNP never did attempt to frame a contention in the operating license proceeding to the effect that " construction was not in conformity with the regulations." Instead it adhered to its insistence that it had a right to replow the ground on the adequacy of the Quality Assurance Program. Furthermore, to the extent that NECNP could be viewed to suggest that its contention really sought to question the execution of the Construction Quality Assurance program, that too is not within the jurisdiction of an operating license Licensing Board.88 NECNP Contention II.B.2 reads as follows:

"The Quality Assurance Program for operations extends only to matters considered to be " safety related," and not to all structures, systems, and components "important to safety."

88 Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 212-13, remanded on other grounds, CLI-74-12, 7 AEC 203 (1974); Houston Lighting & Power Co. (South Texas Project, Units 1 and 2),

LBP-79-27, 10 NRC 563 (1979), a ffirmed on opinion belou, ALAB-575, 11 NRC 14 (1980) and cases there cited.

  • 8 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 591 (1985);

Id., ALAB-785, 20 NRC 818, 870-71 (1981).

88 Consumers Power Co. (Midland Plant, Unita 1 and 2), ALAB-671, 15 NRC 1101 (1982).

7

Examples are discussed in contention II.A.1"8*

Contention II.A.1 referred to in the above quoted contention was, as noted above, a contention dealing with the design and construction QA Program. A review of that contention 25 fails to disclose any specific " examples" listed, let alone discussed. What does appear under the rubric " basis" is a statement about the " Regulatory Agenda" published by the Commission on January 31, 1982 to the effect that that publication cites examples:

"of structures, systems, and components for which' Appendix B criteria have not been fully . implemented,-including in-core instrumentation, reactor coolant pump motors, reactor coolant pump power cables, and radioactive waste system pumps, valves and storage tanks."**

NECNp then goes on to observe that Section 17 of the Seabrook FSAR describes the aspects of the facility covered by the QA Program as the safety related structures, systems and components listed in Tables 17.1-1--3 which are referenced in Section 17.1.1.2(b), but that "none of the exampics cited by the Commission as important to safety is covered by the Seabrook Quality Assurance Program."81

    • NECNP Supplemental Petition for Leave to Intervene (April 21, 1982) at G2.

35 NECNP Supplemental Petition for Leave to Intervene April 21, 1982) at 55-56.

as Id. at 55.

87 Id. at 56.

8

4 y

,1 t Prescinding from whether NECNP's observation is accurate as applied to_the tables referenced, the fact is that the Opera tional QA program is described in Section 17.2 of the FSAR.- In Section 17.2.2.2 reference is had to Tables 3.2-1 and 3.2-2 in Section 3 for a listing of the structures, systems, and components in the Operational QA program.

Furthermore, there is set out the definition of what constitutes the structures, systems or components covered by the QA program. This definition was incorporated by the

.l; '

Applicants in their answer to an NECNP Interrogatory as defining " safety reinted" and in that same answer the Applicants went on to make clear that the Applicants always construed "important to safety" as having the same ,

o definition as " safety reinted."2' This congruity in definition is memorinlized in the evidentiary record in the ,

case.2' In short, a major flau in this contention is that it was predicated on the misbelief that the Applicants had different groups of systems, structures and components classified as " safety related" and "Important to Safety." ,

)

Aside from this deficiency, however, the contention was s also excluded for the separate and valid reason that it l' Applicants' Answers to NECNP Second Set' of In terroga tories and Request for Production of Documents to Applican ts on Con ten tions I. A.2, I.B.I, I.B.2, and I.C and Motion for Protective Order" (Dec. 16, 1982), Ansuer to Interrogatory 1 at pp. 3-4.

8' Applicants Direct Testimony, Post Tr. 970 at 9 (Aug. 17, 1983); Tr. 981 (Aug. 17, 1983).

9

z I r

'laclied specificity. Indeed, the Staff. consistently objectedito it~ for- that reason, arguing that absent a specification'of what components which should be covered by the program but allegedly.were not, the litigation would be unfocussed.80 .The Staff's charge is accurate. The onJ y basis which NECNP ever gave for Contention II.B.2 was:

"The-basis for point 2 is the. comparison between the scope of the Seabrook Quality Assurance Program for operations and the requirements of GDC 1 of_ Appendix A."88 NECNP now seeks -to avoid the force of this argument by hiding behind its reference in the contention itself to the d' examples purportedly given in Contention II.A.188 liowever, these examples are wholly nonspecific and derived

~

from a nonregulatory Commission publication, not the FSAR for Seabrook.

i 1

'o E.g., Response of NRC Staff to Supplements to Pe ti ti ons to Intervene of Coastal Chamber of Commerce, "L.vn n _Chong et al and Coop Members for Responsible Investment," Reflied and Supplemental Contentions of Sun Valley and of New Hampshire (July 1, 1982) at 26-27; Tr.

453 (July 15, 1982).

^' NECNP Supplemen tal Peti tion for Leave to Intervene (April 21, 1982) at 64.

i 88 NECNP Brief at 10.

10 L

s e

.B. The Steam Generator Tube' Contention Was7 Properly Excluded NECNP Contention I.V reads as follows:

"The. Applicant -has not ' demonstrated that it has met GDC 14, 15, 31, and=32 because .it Jimplements (sic) an.

insufficient program for in-service inspection o f; steam generator tubes,

~

i.e. Reg. Guide 1.83,.Rev. 1"88-Th'e basis alleged for this contention was an alleged "long history of problems with steam generators" and the then recent " accident at Ginna" which together were alleged to "show a .need for improved in-service inspection of steam--

- generator tubes."84 NECNP .makes two arguments in urging error in- the exclusion of this contention. It is argued,

-first, that a regulatory guide can be challenged; and,

-second, that sufficient basis was stated by referencing the Ginna accident.ss I t- certainly is true that Regulatory

- Guides are not regulations and are not to be' treated as such.86 'They are, however, " entitled to considerable prima

-33 NECNP's Reply to the f?po nses by the Applicant and the NRC Sta ff to NECNP's C)p : n t ns (June 17, 1982) at

30. 'Also quoted at pages E-4 _. NECNP's Brief to this Appeal Board.

84 Id.

ss NECNP Br. at 5-6.

s6 E.g., Gulf States Utilities Co. (River Bend Station, Units 1 and 2),'ALAB-444, 6 NRC 760, 772 (1977).

4 11 a -

, y -

-g c w ,>~,4-- g -- - e--m -- - - - - . - - - - ,

n facie weight,87 and compliance therewith is likely to 1

-amount to compliance with the regulations.88 It is, therefore, not unreasonable to require a reasonable degree of specificity on the part of an intervenor who is claiming that compliance with a Regulatory Guide is not enough.

NECNP refused any degree of specificity at all. Its reference to the Ginna Reactor is of no help. As NECNP acknowledged, the Seabrook steam generators are the new-Model F Steam Generators, not the type that were at Ginna nor the type that had the alleged myriad problems. In such circumstances, the total lack of specificity was more than enough to reject this contention.

C. The Cooling System Surveillance Contention was Properly Rejected NECNP Contention IV suggested that the Applicants had to establish a surveillance and maintenance program for prevention of the accumulation of aquatic organisms and debris "in cooling systems."4o The basis of the contention was a notice of abnormal occurrences published by the si Vermont l'ankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 811, clarified as to other matters, CLI-74-43 8 AEC 827 (1974).

36 Peti tion for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978).

39 NECNP Reply to the Responses by the Applicant and th e NRC S ta ff t o NECNP's Con ten tions (June 17, 1982) at 27.

See also Public Service Company of New hampshire (Seabrook Station, Units 1 and 21, ALAB-442, 6 NRC 728 (1977).

l

! 40 The contention is quoted at page 10 of NECNP's Brief.

12

. Commission in the Federal Register'which' detailed a number of instances . wherein cooling system flows had been reduced by. fouling.48 At the prehearing' conference, NECNP acknowledged.that- it was operating on the assumption that-1 the' cooling tunnels were a safety system, at least for certain-purposes.*2 This, of course, is not the case.48 While the-tunnels will be used as the' heat sink until'such time as- some event or occurrence -blocks 95% of the flow, the ultimate heat sink is a safety grade cooling tower with its own fresh ' water supply.4 4 It was for this reason that the~ Licensing Board rejected- the contention.45 And the Licensing Board fully explained this; it did not simply rely on the " terse explanation" quoted in NECNP's Brief.is NECNP -argues that the Licensing Board's explanation constituted a wrongful ruling on the merits. However, a Licensing Board is not required to blind itself to physical facts in the real world or to prior decisions of i.

I.

t

  • 1 NECNP's Supplemental Contentions (June 17, 1982) l

- at 2.

42 Tr. 494 (July 15, 1982).

43 Public Service Company of New Hampshire (Seabrook I and 2), LBP-76-26, 3 NRC 857, 877-78 i Station, Units

! (1976).

    • Id.

45 LBP-82-76, supra, at 1075.

  • s NECNP Br. at 11.

i.

13 I

2l?

g.

~

adjudicatory boards of this agency.47 Finally, it is ~not clear- what NECNP-is=trying to assert-in the footnote which appears on page 12 in its

-brief.' If the assertion is that somehow aquatic organisms

- in the tunnels.will break _off andLfind their way into pumps and . valves 'within-- the plant, this also ignores reality.

The only place where the salt water.goes in Seabrook is through- heat exchangers; the operating ' components are cooled directly by water which is fresh.46 II. THE~ LICENSING BOARD'S ACTION IN GRANTING

SUMMARY

. DISPOSITION WITH RESPECT.TO CONTENTION SAPL SUPP. III WAS CORRECT SAPL Contention SAPL Supp. III reads as follows:

"The applicable requirements of the Commission's Interim Policy Statement issued June 13, 1980, 45 Fed. Reg.

40101 on' Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 have not been met."4' As noted earlier, this contention'was disposed of by the 4' l'ermon t Yankee Nuclear Power Corpora tion (Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC 425, 437

-(1974).

4* See FSAR Fig. 9.2.7 (where the legend "HX" stands for' heat exchanger). See also, id., Section 9.2.1.2.

4' This was the wording of the contention as reframed by the Applicants, Applicants ' Response to the Petition for Leare to Intervene and Further Sta temen t of Conten tions on Behair of the Seacoast Anti-Pollution League at 4 (April

2G, 1982), and accepted by SAPL, Tr. 136 (May 6, 1982).

See LBP-82-76, supra, at 1082.

14

m. _

Licensing Board on cross-motions for~ summary disposition.so Both SAPL and Mass AG now appeal' this- disposition.s t SAPL begins. its attack on the- Licensing Board's disposition of this . matter by . making reference to an )

affidavit'which it fileds: and asserting that the affidavit

" challenged the, adequacy of the consequence analysis in the FES."58 The affidavit- does no such thing. It recites a number of things that the affiant fails to find in the FES 1 and claims' certain assumptions are oversimplified. This-affidavit is, in reality, Exhibit- 1 for the proposition that a pure question of law was presented to the Licensing Board. Like'the Board, the affiant was reading it and making judgments as to what it did or did not contain.- The major difference is that the Licensing Board read it against the Policy Statement, not what it thought should be in the Policy Statement.

A review of the Staff's attempt to comply with the so .See n. 6, supra, and accompanying text.

s2 SAPL Br. at 3-9; Mass AG Br. at 25-28. Mass AG's interest in this issue is new found. Mass AG filed no opposition to the Applicants Motion for Summary disposition of this contention, no brief in support of SAPL's motion for summary disposition in its favor, and took no part in the oral argument on the cross motions. See Tr. 769-90 (April 7, 1983).

s2 A ffida vi t of Richard L. Kaufmann (Feb. 11, 1983).

This affidavit was attached to SAPL's Motion for Summary Disposition, Seacoast Anti-Pollution League's Motion for

. Summary Dispositi on (Contention SAPL Supp. III) (Feb. 11, 1983).

ss SAPL Br. at 4.

15

4 Policy- Statements 4 reveals that'.the directives- of_the Policy Statement have been fully complied with. The Policy Statement requires that the FES contain "a reasoned-consideration of the environmental risks (impacts) attributable to accidents [at the Seabrook]' facility"; it does. As required by the Policy Statement, the discussion is not confined to accidents that can reasonably be expected to occur, although such accidents are discussed.ss There is the required probabilistic assessment of severe accidents.se Charts are included which show the probability distributions of various health impacts on populations.st Both atmospheric releases and releases to the groundwater are discussed in detail.se As required by the Policy Statement, the discussion of health and safety risks fairly reflects the current state of knouledge regarding such risks.58 A discussion of socio-economic impacts associated with emergency measures is included within the discussion.88 As required, there is-si FES, Sec. 5.9.4 (pp. 5-34--5-71).

55 FES, Sec. 5.9.4.5(1).

s* FES, Sec. 5.9.4.5(2). The actual accidents analyzed are set forth in a narrative description in Appendix E to the FES.

57 FES, Figs 5 5.7 at pp.5-53 et seq.

56 See FES, pp. 5-52, 5-58, 5-59 - 64.

se FES pp. 5-64 --5-70.

so id.

16

a discussion- of the uncertainties in the probabilistic estimates *8 and the conclusion contains an assessment of the environmental risks of accidents as compared with the-risk from normal operation.s Nothing more is required by

~the Policy Statement.

III. THERE WAS NO ERROR IN THE LICENSING BOARD'S RESOLUTION OF THE FULLY LITIGATED ISSUES A. The Environmental Qualification Issue NECNP devotes some 17 pages of its Brief to an argument with respect to the issue of environmental qualification of electrical equipment.58 The first eight pages of the discussion encompass a statement of legal history and principios which, even assuming them to be correctly stated, take or make no issue with the Partial Initial decision on review. This is followed by an attack on the Licensing Board's finding with respect to a single type of cable.84 The qualification of this cable was established by a letter from the manufacturer which expressed the view that it was sufficiently similar to another of its cables which had been fully tested that the manufacturer deemed it qualified. NECNP argues that that is the sole basis for qualification in the record and that en FES pp. 5-70 -- 5-71.

62 FES S ec . 5.9.4.6.

es NECNP Br. at 12-25.

84 NECNP Br. at 21 - 25.

17

,  := -

that1the

~

is not'enough. ;In fact,-it is not the sole basis Applicants ' relied upon.. The uncontradicted testimony is procedure an independent check thatLas a matter of normal on certifications by_ manufacturers of this nature is made to be sure. that the' similarity exists before the

Applicants' engineersfsign off on the qualification.es NECNP complains that the Licensing Board acted as a witness for - the Applicants by analyzing NECNP's own evidence to satisfy itself that the cables involved were, indeed, similar. to.the ones tested.85 If NECNP did not want the Board to examine and draw conclusions from the-exhibit involved, NECNP should not have put it in evidence or should have limited its offer. It did neither.

NECNP's other complaint is that the Board erred in finding .that the Staff's audit of the Applicant's Environmental Qualification Program was adequate.87 The gravamen of this charge is the fact that six of twelve files audited had deficiencies. However, as the Licensing Board states:

"As to the six file deficiencies found during the audit of Applicants' EQFs, four merely called for addition of clari f.ving or supporting 'information already in the Applicants' possession, and two called for corrections to two equipment items observed during a es Tr. 381-83 as NECNP Br. a t 23- 2 4 .

NECNP Br. at 25-29.

18

~ ._, .

h.'

54.

walkdown inspection."**

!This Licensing Board's account of what was involved-demonstrates-just how far NECNP is reaching on this one.

The uncontradicted testimony of the Staff witness was that where information is in the possession of the applicant although- not in the file, a serious deficiency does not exist.**

Finally it should be noted that- the Licensing Board gave NECNP every benefit of the doubt with regard to this

contention. The actual contention merely was- that time durations had not been specified. -NECNP abandoned this.70 Nevertheless that Board allowed NECNP to explore other matters which we argued below, and still maintain, were well beyond the contention as ~it was worded and. admitted for litigation. In any event, the Licensing Board's findings with respect to the environmental qualification issue are fully supported by the record.

B. The SPDS Issue Was Correctly Resolved SAPL argues that the Licensing Board erred in its resolution of the contention with respect to the Safety Parameter Display System (SPDS).78 This Appeal Board has

eo Tr. 702-03 (Oct. 1, 1986).

70 See LDP-87-10, supra, at 16.

7i SAPL Br. pp. 10-18.

19

i SAPL's major - arguments on this

~

already rejected one of

-point, vi z. that all elements of an SPDS must be in place before any operating license issues,72 in its decision-with

. respect to the stay motions.78 SAPL also argues that error was committed byfthe Licensing Board in its denial of SAPL's motion to have a certain Staff witness produced for cross-examination in-regard to the implementation schedule negotiated with the Applicants with respect to the SPDS.74 That motion,ts however did not even come close to compliance . with the regulatory provisions governing compulsory attendance of particular Staff uitnesses.18 Thus the motion was properly denied for procedural reasons. But, even if the motion were not procedurally flawed, the testimony solicited would

.have had no bearing on the ultimate issue, viz. whether, assuming that the SPDS at Seabrook had the deficiencies at issue, there was still reasonable assurance that the public

'3 SAPL Dr. at 17-18.

13 Public Service Company of New H'ampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC (May 8, 1987), Slip Op. at 26. This ruling is consistent with the facts of the universe also. The uncontradicted testimony in this case is that there is no plant in the United States with a fully complaint SPDS. Tr. 982 (Oct. 3, 1986).

SAPL'Dr. at 14.

1s Nation to Compel NRC Staff to Produce NRC Project Manager for Seabrook as Wi tnesses (Sept. 23, 1987).

to Compare Motion cited n. 77, supra, wi th 10 CFR 2.720(h)(2)(i).

20

s ,

health and safety would be adequately protected. In short, even if this witness ' appeared and testified as. SAPL apparently. had ; hoped, the 'most that would have been accomplished would have been to establish that the Staff ought to have been tougher on the Applicants. But such a finding, if made, would -not vitiate the Licensing Board's relevant finding 'that the public health an'd safety is not being compromised by the state of affairs that exists.

Finally SAPL argues that the Licensing Board erred in its findings with respect to particular items which are not yet on the SPDS. As noted by this Appeal. Board in its decision on the stay motions, the Licensing Board fully er:plained the basis for its conclusions on these matters.ft The Licensing Board's findings and rulings with respect to SPDS should be affirmed.

i t

i it ALAD-865 at 25 citing LBP-87-10, supra, at 7-14.

21 i

--n- - , , - , ,,,,,,,,,,,,e,.,, ,,,,n , _ ,,,-,,--,w-----,--+- -,--,,r-~~ .,---~.-.nv n,--n~,-, ~ , , - , - - - - - , , - - - - - - - - - ,

.a IV. THE REFUSAL TO REOPEN THE RECORD ON SIRENS WAS ENTIRELY PROPER Both SAPL and Mass AG complain of the fact that the Licensing Board denied the various motions to reopen the evidentiary record to consider the adequacy of sirens located in the emergency planning zone.75 The Mass AG complains now only of the rejection of his contention. He argues that insofar as the refiled Licensing Board weighed the five factors with respect to the late filed contention, the Board erred in its analysis of the first factor because it analyzed that factor with respect to the original motion rather than with regard to the revised basis set out in the motion to reconsider.

lie argues that it was not until the Applicants responded to his first motion that he could have known that the were relying on an' alternate criterion to Applicants satisfy the necessary audibility requirements.** However, the Licensing Board specifically rejected this argument and for good reason. The Licensing Board held ,in essence, that if the Mass AG wanted to challenge the siren system, he knew, or should have known, enough information with respect to the Merrimac situation back in the spring of 1' SAPL Dr. pp. 18-28; Mass. AG Br. pp. 17-25.

Mass AG Br. at 21 ff.

    • Id. at 22.

22

1986.to do so.** The Licensing Board weighed this factor heavily against -Mass AG- even though it found that the

~

second,' third and fourth factors weighed in Mass AG's favor.82 The - fifth factor was properly found to weigh

~

against Mass AG, and the overall balance was struck against i

him on the basis that even if all other factors weigh in favor of a movant, this does not outweigh an inexcusable tardiness $8 -and here both the fifth and first factors weighed against Mass AG.** The standard of review.is abuse of discretion

  • 5 and none has occurred here.

Prescinding from its ruling on the late filing of the siren contentions, the Board's analysis of Mass AG's motion to reopen is unassailable also. The motion was untimely and the movant also failed to satisfy the late filing criteria, thus resulting in two of the criteria for motions to reopen - not being mot.*

  • Furthermore this simply is not a significant safety issue. The Staff can measure the efficacy of a siren system against objective criteria and
    • ASLB Nemorandum and Order, unpublished (March 25, 1987) at 8-9.
  • 2 Id. at 9-10.
  • 3 See Nuclear Fuel Servi ces , Inc (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
    • Op. cit. supra n. 83 at 12 es Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1190 (1985).

Se 10 CFR 2.731(a)(1) and (d).

23 i

. ~ . - - . _ . _ - . _ . _ , . - _ _ . . , _ _ , _ _ _ _ - . . . _ - _ _ ,, _ . - .

i thus the entire issue of siren audibility and operability can properly be left to Staff oversight.s7 Thus another criterion is not met.58 Finally there would have been no different result. The Mass AG argues that a litigable dispute exists because his expert obtained sound level readings that argued against adequacy when the " full width" octave band was used, while the readings of the Applicants expert were obtained in the "one-third" octave band.** But the fact remains that there is no dispute because there is no disagreement that measurements in either band are acceptable.so The SAPL arguments have no greater force. SAPL first objects to the fact that in its analysis of the "five Board held that the third factor weighed factors" the heavily against SAPL because SAPL had neither identified an expert uitness nor summarized his testimony.'8 But this ruling too,is fully in accord with controlling precedent.'2

Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1104-05 (1983).

    • Nass. .4G Br. at 24-25.

'o ASLB Nemorandum and Order, supra n. 81 at 15-16.

    • SAPL Br. at 22.
  • t Commonwealth Edison Company (Braiduood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986); Nississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).

21

6 As for reopening the record, the. Licensing Board correctly ruled that all of the necessary criteria were not. satisfied for the same reasons as discussed above with respect to the Mass AG's arguments. Again no significant safety issue was-demonstrated to be involved and no showing was made that a materially different result.would have been forthcoming.'

V. THE LICENSING BOARD PROPERLY DENIED MASS AG'S PETITION FOR WAIVER OF 10 CFR 50.47(d)

In his petition for waiver of 10 CFR 50.47(d),88 Mass AG made four arguments as follows:

1. The regulation violates the Atomic Energy'Act.'*
2. Because the Governor of Massachusetts has suspended planning and- various Massachusetts communities had voted not to participate in planning, there is no assurance that a full power license will issue.*8
3. Assuming a low power license issues, and operation at 5% power occurs for a long time, the risk of off-site consequences will be increased to a level not considered by the Commission in adopting the regulation.es
4. The happening of the accident at Chernobyl dictates waiver of the regulation.

In order to prevail in the effort to obtain a waiver

Peti tion of A t torney General Francis X. Bellotti to Reroke Regulation 50.47(d) or in the Alternative to Suspend its Application in the Seabrook Licensing Proceeding ( July 2, 1986).

    • Id. Paragraphs 1-5 at pp. 1-3.

'S Id. Paras 1-11 at pp. 3-5.

Id. Paras. 12-14, p.6.

Id. Para. 16, p.7.

25

e.

of-a Commission regulation it is necessary to show that:

. . . special circumstances with respect to the subject matter of the particular proceeding are such that the

-application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted."'8 The arguments made by Mass. AG do not succeed in establishing that "special circumstances" exist. The first and fourth arguments are clearly generic and are as applicable to any other nuclear power plant as they are to

.Seabrook. The third argument, to the extent it is offered separately and as distinguished from the second,.is also generic. Operation of any reactor at a low power level for a given period of time creates more fission product inventory than operation for a lesser time.

This 1 caves the second argument to the effect that the attitudes of Massachusetts state and local governments make it unlikely that Seabrook will receive a full-power license in the near future, or, indeed, ever. This line of argument has been clearly rejected by the Commission as a matter of both law and policy in the Shoreham proceeding.

facilitate the purposes of low power testing. To have granted the Mass AG's petition would, therefore, have had the effect of thwarting the purpose of the regulation; a 26

[6I VI. THE REMAINING ISSUES ARE FORECLOSED BY PRIOR PRECEDENT BINDING ON THIS APPEAL BOARD Only two other assignments of error remain. These present the questions of whether a separate EIS had to be and whether 10 CFR prepared for low power- operation 50.47(d) is valid. The first issue has been decided against the appellants by the Commission and the Courts.8 o o As to the second issue, the regulation is not subject to challenge before this Appeal Board.to CONCLUSION The decision of the Licensing Board should be affirmed.

Respectfully submitted, A ao s-Thomas G. Dgnan, t Jr.

George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants i

direct contravention of 10 CFR 2.758(b).

888 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-85-12, 21 NRC 1587 (1985); Id., CLI-81-9, 19 NRC 1323, 1327 (1984); Cuomo v. NRC, 772 F.2d 972, 971-76 (D.C. Cir. 1985).

    • 8 ALAB-865, supra, at 15 and cases cited in n. 31.

27

s w

00lME ii'P

-EC CERTIFICATE OF SERVICE I, Thomas G. Dignan, ' one of the attorneys for th;B7 JW -8 P3 54 Applicants herein, hereby certify that on June 3, 1987, I made service of the within document by mailing copiegga_

thereof, postage prepaid, to: 00Ch!igj ,,U' M.

Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory 'U . S . Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Gary J. Edles Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S. Nuclear Regulatory Office and Court House Commission Post Office Square Washington, DC 20555 Boston, MA 02109 Administrative Judge Sheldon J. Robert Carrigg, Chairman Wolfe, Esq., Chairman Board of Selectmen

-Atomic Safety and Licensing Town Office Board Panel Atlantic Avenue U.S. Nuclear Regulatory North Hampton, NH 03861 Commission Washington, DC 20555 Dr. Emmeth A. Luebke Diane Curran, Esquire Atomic Safety and Licensing Andrea C. Ferster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.

Washington, DC 20555 Washington, DC 20009 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555

Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Peter S. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472

a:

s>

Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH. 03841 Concord, NH 03301-Judith H. Mizner, Esquire Charles-P. Graham, Esquire Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110 x

Th6 mas G. Diptisfh I

1

Retrieved from "https://kanterella.com/w/index.php?title=ML20214T315&oldid=3242211"