ML20214W059
| ML20214W059 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/05/1986 |
| From: | Bronstein D, Sneider C MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1816 OL-1, NUDOCS 8612100066 | |
| Download: ML20214W059 (11) | |
Text
. -
m.
i
/gl g 00CXETED UNITED STATES OF AMERICA UiNPC NUCLEAR REGULATORY COMMISSION 86 08 -8 P4 39 Before the Commissioners CFFI:n DCCbGb, ; ~
,l Pr.o c.
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF NEW
)
Docket Nos.
)
50-443/444-OL (Seabrook Station, Units 1 and 2)
)
(On-Site EP)
)
December 5, 1986
)
ATTORNEY GENERAL FRANCIS X. BELLOTTI'S PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD'S NOVEMBER 20, 1986 ORDER DENYING THE APPEAL OF THE ORDER OF THE LICENSING BOARD AUTHORIZING ISSUANCE OF OPERATING LICENSE TO CONDUCT FUEL LOADING AND PRECRITICALITY TESTING Attorney General Francis X. Bellotti hereby petitions for review, pursuant to 10 C.F.R.
S 2.786(b), of the Atomic Safety and Licensing Appeal Board's November 20, 1986 Order denying his appeal of the October 7, 1986 Order of the Licensing Board authorizing issuance of an operating license to conduct fuel loading and precriticality testing.
STATEMENT OF PROCEEDINGS On August 22, 1986, the applicants in this proceeding moved, pursuant to 10 C.F.R.
S 50.57(c), for authorization to conduct fuel loading and precriticality testing.
On September 3, 1986, Attorney General Bellotti filed his 1
8612100066 861205 PDR ADOCK 05000443 G
Objection to Applicants' Motion, citing,, inter alia, the Applicants' failure to comply with the provision of 10 C.F.R. 5 50.33(g) requiring submission of radiological emergency response plans of all state and local governments within the Seabrook Emergency Planning Zone (EPZ).
In fact, no off-site emergency response plans have yet been submitted for the six Massachusetts communities within the Seabrook EPZ or for the Commonwealth of Massachusetts.
On October 7, 1986, the Licensing Board granted Applicants' motion.
Attorney General Francis X. Bellotti appealed the Licensing Board's Order to the Appeal Board, contending on appeal that 10 C.F.R.
S 50.33(g) requires submission of the emergency response plans prior to the issuance of any operating license.
On November 20, 1986, the Appeal Board denied the Attorney General's appeal.1!
ARGUMENT A.
The Appeal Board Erred in Denying the Attorney General's Appeal Since the Applicants Failed to Comply With the clear Terms of Section 50.33(g).
The Appeal Board's decision constitutes a denial that the clear, unambiguous words of 10 C.F.R.
S 50.33(g) mean what they say.
The Commission should grant review in order to reaffirm 1/
Intervenor Seacoast Anti-Pollution League (SAPL) joined the Attorney General's appeal, endorsed his argument on appeal, and raised several additional claims.
The Appeal Board has not yet ruled on SAPL's additional arguments and, consequently, has not yet affirmed or reversed the Licensing Board's October 7, 1986 order.- See opinion of the Appeal Board at 2, 12.
2-
k the clear intent of that provision.
It should be apparent that a fair reading of section 50.33(g) can yield but one meaning for that section:
that it requires the submission of state and local emergency response plans prior to the issuance of an operating license.
Section 50.33(g) requires, as a part of the application process for an operating license for a nuclear power reactor, that:
the applicant shall submit radiological emergency response plans of state and local governmental entities in the United States that are wholly or partially within the plume exposure pathway Emergency Planning Zone (EPZ),
as well as the plans of state governments wholly or partially within the ingestion pathway EPZ.
10 C.F.R.
S 50.33(g).
The requirements of Section 50.33(g) are mandatory.
As the Shoreham Licensing Board has stated:
(Aln interpretation (requiring the filing of local government offsite emergency plans only if such plans exist) would be contrary to the plain meaning of Section 50.33(g) and in conflict with the overall regulatory scheme of 10 C.F.R. Part 50, which generally sets forth mandatory requirements for the issuance of a construction permit or an operating license.
Indeed, section 50.33 is entitled ' contents of applications; general information;' and begins with the general preamble 'Each application shall state:.'
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 620 (1983).
The Commission in its Statement of Consideration for the final rule made clear the mandatory nature of the Section 50.33(g) requirement of plan submission when it stated, "In J
order to continue operations or to rec'eive an operating license, an applicant / licensee will be required to submit its emergency plans, as well as state and local governmental I
response plans, to NRC."
45 Fed. Reg. 55402, at 55403, Col. 2 (August 19, 1980).
The Commission's emergency planning regulations, then, essentially establish two conditions for the issuance of an operating license:
(1) as part of the application process, the submission of emergency response plans as set forth in section 50.33(g); and (2) a determination that such plans are adequate in accordance with the standards set forth at section 50.47 and Part 50, Appendix E.
While the Commission's regulations, at section 50.47(c), do make some allowance for the issuance of an operating license in those cases where plans do not meet all the applicable planning standards set forth at S 50.47(b),
nowhere in the Commission's regulations can there be found any basis for allowing issuance of an operating license absent the required submission of state and local response plans.
- Indeed, the Commission in its Statement of Consideration for the emergency planning regulations notes that in deciding whether i
to permit reactor operation in.the face of some deficiencies in the emergency reponse plans, "the Commission will examine state plans, local plans, and license plans to determine whether features of one plan can compensate for deficiencies in another plan.
45 Fed. Reg. at 55403, Col. 1.
Thus the Commission assumes that in all cases state and local plans will be submitted and only makes allowances for issuance of an
~n i
operating license in those cases where the required state, local, or utility plan may be deficient (and adequate compen-satory measures are taken).
The decision in the Shoreham licensing case, the only NRC decision to construe section 50.33(g), is not to the contrary.
See Long Island Lighting Co.,
supra; aff'd, CLI-83-13, 17 NRC 741.
In that case the Licensing Board held only that section 50.33(g) does not require the termination of licensing proceedings in the absence of the submission of a local government sponsored offsite emergency response plan when the utility has submitted an offsite emergency response plan attempting to compensate for the lack of the local-sponsored plan.
That decision did not (and neither did any of the later Shoreham decisions) authorize the issuance of any operating i
license in the absence of offsite plans.
Moreover, the Commission's regulations make no distinction between types of operating licenses with respect to the Section 50.33(g) requirement of submission of plans.
Indeed, Section 50.33(g) states, "If the application is for an operating license, the applicant shall submit Nowhere does the regulation suggest that its requirements are applicable only to operating licenses authorizing full power operation.
- Indeed, the very fact that the submission of emergency response plans is a requirement of the operating license application would necessarily mean that such requirement is a prerequisite to the issuance of any license authorizing any level of operation requiring licensure. _
1 ss
'b -
10 C.F.R. Section 50.47(c) is in no way to the contrary.
That section, which is entirely separate and distinct from section 50.33(g), provides that no " review, findings, or determination" need be made concerning the adequacy of the emergency plans prior to issuance of an operating license authorizing only fuel loading or low power operation.
Contrary to the Applicants' assertion, this distinction is logical.
Fuel loading and low power operation are of no value unless a full power license is eventually issued.
The review process for the adequacy of emergency response plans -- and the hearings' held following completion of that review -- take at least several months.
It makes no sense to allow fuel loading or low power operation to commence when tne review process has not even begun by the submission of the state and local government plans required by Section 50.33(g).
Without submission of such plans, the application is incomplete and the applicants cannot be said to have taken every step within their control to set the review process in motion.E!
Thus, the applicants are not entitled to begin any form of operation.
B.
Commission Review Should be Exercised in Order to Reaffirm The Clear Intent of Section 50.33(g).
The decision of the Appeal Board denying the appeal of the Attorney General is erroneous with respect to an important 2/
The Attorney General does not concede that submission of a utility plan for state and local governments would satisfy the section 50.33(g) mandate.
However, the Applicants have not yet taken even this step as to plans for Massachusetts and the six Massachusetts towns within the EPZ.
question of law.
In its atteinpt to speed along the application for fuel loading, and, soon, presumably low power operation, the Appeal Board has chosen to deny that section 50.33(g) says what it clearly does:
that no application for an operating license is complete without submission of state and local emergency response plans.
The Applicants should not be allowed to proceed with operation when such a basic and fundamental requirement has not been satisfied.
The Commission should exercise its discretion to review the Appeal Board decision in order to restate the obvious meaning of section 50.33(g), to correct the misapprehension of the Appeal Board as to its meaning, to reaffirm the importance of adherence to the Commission's regulations, and to correct the unfortunate impressions created by the Licensing Board's order and the Appeal Board's decision that regulations are to be strictly applied only to intervenors and interested states and municipalities and not to Applicants as well.
Respectfully submitted, FRANCIS X. BELLOTTI By: bls bbhf4)
Carol S. Sneider Assistant Attorney General n ~$
S n Donald S. Bronstein Assistant Attorney General Environmental Protection Division Department of the Attorney General One Ashburton place, Room 1902 Boston, MA 02108 (617) 727-2265 Dated:
December 5, 1986
(
DOC Mi 7 &
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION T6 00C -8 P4 :59 In the Matter of
)
Of f C' f
)
D OCU ~,.%.. ',,. c 1
50 4T37444-OL PUBLIC SERVICE COMPANY OF NEW
)
Docket No.(s)
)
(Seabrook Station, Units 1 and 2)
)
)
)
CERTIFICATE OF SERVICE I, Carol S. Sneider, hereby certify that on December 5, 1986 I made service of the within documents by mailing copies thereof, postage prepaid, by first class mail, to:
Lando W.
Zech, Jr., Chairman Thomas M. Roberts Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 James K. Asselstine Frederick M. Bernthal Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Kenneth M. Carr Alan S. Rosenthal, Chairman Nuclear Regulatory Commission Atomic Safety & Licensing Washington, DC 20555 Appeal Board U.S. Nuclear Regulatory Commission East West Towers Building Third Floor Mailroom 4350 East West Highway Bethesda, MD 20814 Gary J. Edles Howard A. Wilber Atomic Safety & Licensing Appeal Atomic Safety & Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building Third Floor Mailroom Third Floor Mailroom 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814
Sheldon J. Wolfe, Chairperson Helen F. Hoyt, Chairperson Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission East West Towers Building East West Towers Building Third Floor Mailroom Third Floor Mailroom 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. Emmeth A. Luebke Dr. Jerry Harbour Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission East West Towers Building East West Towers Building Third Floor Mailroom Third Floor Mailroom 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 H. Joseph Flynn, Esq.
Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee, Esq.
Federal Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street, S.W.
25 Capitol Street Washington, DC 20472 Concord, NH 03301 Docketing and Service Paul A.
Fritzsche, Esq.
U.S. Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 Washington, DC.
20555 Augusta, ME 04333 Roberta C.
Pevear Diana P. Randall State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844 Atomic Safety & Licensing Robert A. Backus, Esq.
Appeal Board Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 East West Towers Building Manchester, NH 03106 Third Floor Mailroom 4350 East West Highway Bethesda, MD 20814 Sherwin E. Turk, Esq.
Judith H. Mizner, Esq.
Office of the Executive Legal Silvergate, Gertner, Baker Director Fine, Good & Mizner U.S. Nuclear Regulatory Comm.
88 Broad Street Tenth Floor Boston, MA 02110 7735 Old Georgetown Road Bethesda, MD 20814 -
U Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq.
J. P. Nadeau Matthew T. Brock, Esq.
Board of Selectmen Shaines & McEachern 10 Central Road 25.Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A. Canney Board of Selectmen City Manager RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street E. Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510 25 High Road (Attn: To.1 Burack)
Newbury, MA 10950 Senator Gordon J. Humphrey Peter J. Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton)
Newburyport, MA 01950 Donald E. Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 Brentwood Board of Selectmen Gary W.
Holmes, Esq.
RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 Philip Ahrens, Esq.
Diane Curran, Esq.
Assistant Attorney General Harmon & Weiss Department of the Attorney suite 430 General 2001 S Street, N.W.
State House Station #6 Washington, DC 20009 Augusta, ME 04333 Thomas G.
Dignan, Esq.
Richard A. Hampe, Esq.
R. K. Gad III, Esq.
Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 Boston, MA 02110 r-S Beverly Hollingworth Edward A. Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 442 J.W. McCormack (POCH)
Boston, MA 02109 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Charles P. Graham, Esq.
Civil Defense Director McKay, Murphy and Graham Town of Brentwood Old Post Office Square 20 Franklin Street 100 Main Street Exeter, NH 03833 Amesbury, MA 01913 Rep. Edward J. Markey Chairman U.S.
House of P.epresentatives
-Subcommittee on Energy Conservation and Power Room H2-316 House Office Building Annex No. 2
+
Washington, DC 20515 Attn:
Linda Correia a
p C
l-i, s( D 0 1 l 4 O L L (,\\
Carol s. Sneider Assistant Attorney General Environmental Protection Division December 5, 1986 l
l l
! i