ML20214W480
| ML20214W480 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/08/1987 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#287-3702 OL-1, NUDOCS 8706160041 | |
| Download: ML20214W480 (29) | |
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UNITED STATES OF AMERICA .
NUCLEAR REGULATORY COMMISSION '87, JJN 10 A9 :59 EEFORE THE COMMISSION '{- r,.,,.
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In the Matter of )
, ) Docket Nos. 50-443 OL-1 PUBLIC SERVICE COMPANY OF ) 50-444 OL-1 NEW IIAMPSHIRE, et g. ) On-site Emergency Planning
) and Safety Issues (Seabrook Station, Units 1 and 2) )
NRC STAFF'S RESPONSE TO STAY APPLICATIONS FILED BY SAPL, NECNP, TIIE TOWN OF HAMPTON, AND THE MASSACHUSETTS ATTORNEY GENERAL I
i Sherwin E. Turk Senior Supervisory Trial Attorney June 8, 1987 6tgog [ 3 0 01
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t-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DEFORE THE COMYISSION In the Matter of )
) Docket Nos. 50-443 OL-1 PUBLIC SERVICE COMPANY OF ) 50-444 OL-1 NEW IIAMPSHIRE, ej g. ) On-site Emergency Planning
) and Safety Issues (Seabrook Station, Units 1 and 2) )
NRC STAFT'S RESPONSE TO STAY APPLICATIONS FILED BY SAPL, NECNP, TIIE TOWN OF HAMPTON, AND THE MASSACHUSETTS ATTORNEY GENERAL Sherwin E. Turk Senior Supervisory Trial Attorney June 8, 1987
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TABLE OF AU11MITI ES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' 11 INIB3XUTIN ............................................... 'l i s DI SQAiS im . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Legal Standards Governing Stay Requests .......... 3 B. 'Ihc Pending Stay Requests . ....................... 4 4
Likelihood of Success on the Merits . . . . . . . . .
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- 1. 4 i
(a) Need to Supplement the EIS . . . . . . . . . . . . . 4 i (b) Violations of Atanic Energy Act . . . . . . . . 9 4
(c) Means for Notification of the Public ... 11 (d) - Consideration of Class 9 Accidents ..... 13 (e) Safety Parameter Display System . . . . . . . . 14 (f) Failure to Require Inplementation of the SPD6 Schedule and Failure to Call S t a f f Proj ec t Manager As a Wi tness . . . . . 15
- 2. Irreparable Injury .......................... 16 i 3. Hann t o Other Part i es . . . . . . . . . . . . . . . . . . . . . . . 17
- 4. hhere the Public Interest Lies .............. 18 i
- OCNCLUS I N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4
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TABLE OF AUIHRITIES i* .
., i I PAGE(S)
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. JtDICIIL IECISICNS \
,i Citizens For An Orderly Energy Policy, Inc. v. County
} . of Suffolk, 604 F.Supp 1084 (E.D.N.Y.1985), aff'd per curtam, 813 F.2d 570-(2d Cir., March 9, 1987) ............ 6 ,
i Ouano v. Iong Island Li@ti Co., No. 84-4615 (N.Y. Sup.
Ct. , Feb. 20, 1985) , af F , N.Y.S. 2d 867 (App.
' % Di v . , Feb . 9 , ( 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Cuomo v. MIC, 772 F.2d 972 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . 5, 7, 8, 17 l Public Service Co. of New Hengshire 'v. Town of West i NeWbury, No. 87-1140-K (D. Mass., May 6, 1987),
! injunction granted wnding appeal, No. 87-1395, l (1st Cir., May 7, 1787) .................................. 12 Virginia Petroleun Jobbers Association v. PPC,
- 259 F.2d 921 (D.C. Cir. 1958) ............................ 3 i '
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! ! 1 i AD11NISIRATIVE DBCISICNS '
! Conmission ,
! Iong Istr.nd Lighting Co. (Shoreben NLiclear Power
! St at ion) , GI-85-1, 21 MIC 275 (1985 ) . . . . . . . . . . . . . . . . . . . . 5, 10
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]' Long Island Li@ ting Co. (Shoreham Nuclear Power Station),
CLI-85-12, 2; NHC 1587 (1985), stav mnding appeal denied, Qaano v. ME, 772 F.2d 972 (7.C. Cir.1986),
appeal dTsnTesed as moot, '
~F.2d (D.C. Cir.,
i March ~
, 1957) .......................................... 5, 6, 7, I 8, 18 I
- i long Island Lighting Co. (Shorehan Nuclear Power Station),
CLI-84-9, 19 rec 1323 (1984) ............................. 5, 6, 17 j Pacific Oss and Electric Co. (Diablo Canyon Itaclear j Power Plant, thits 1 and 2), CLI-84-5,19 MIC 953 (1984).. 17
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l, Public Service Co. 'of _New Hangehire, (Seabrook Station.
( TI thits 1 and 2), GI-87-02, 25 MIC (April 9, 1987) ... 2, 7, 18, 19 I
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1 e,
- 111 -
PAGE(S)
Atomic Safety and Licensine Appeal Board Cleveland El'ectric Illianinctug Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743 (1985) ....... 3, 4, 17 Duke Pcwer Co. (Catawba Nuclear Station, Units 1 and 2),
AIAB-7 9 4, 2 0 NBC 16 3 0 (19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17 Florida Power & Li@t Co. (St. Lucie Nuclear Power Plant, Wit 2), AIAB-400, 5 NRC 1185 (1977) ..................... 18 Iong Island Lightirg Co. (Jamesport Nuclear Power Station, Unita 1 and 2), A AB-481, 7 KRC 807 (1978) ............... 4 Long Island Li $ ting Co. (Shoreham Nuclear Power Station, Unit 1), AIA F810, 21 NRC 1616 (1985) .................... 17 Philadelphia Electric Co. (Limerick Generating Station, Uni t s 1 and 2) , AIAB-789, 20 NRC 1443 (1984 ) . . . . . . . . . . . . . 4 Public Service Co. of New Ifanpshire (Seabrook Station, Units 1 and 2), AIAB-865, 25 NRC (May 8, 1987) ....... 2, 12, 14, 18 Public Service Co. of New ifanpshire (Seabrook Station, Units 1 and 2), AIAD-854, 24 NRC (Dec. 8, 1986) ..... 10 Public Service Co. of New Ilanpshire (Seabrook Station, Lhits 1 and 2), AIAB-853, 24 NRC 711 (Mov. 20,1987),
set aside, CLI-87-02, 25 NRC (April 9, 1987) ........ 10 Public Service Co. of New Hanpshire (Seabrook Station, Uni ts 1 and 2 ) , AIAD-731, 17 NRC 1073 (1983) . . . . . . . . . . . . . 13 Southern California Edison Co. (San Gofre Nuclear Generating Station, Units 2 and 3), AIAB-673, 15 NRC 688 (1982) ........................................ 3 Toledo Edison Co. (Davis-Besse Nuclear Power Station, thi t s 1, 2 and 3) , AIAB-385, 5 NRC 621 (1977) . . . . . . . . . . . . 17 Atanic Safety and Licensing Board Public Service Co. of New Ilanpshire (Seabrook Station, Units 1 and 2), LDP-87-10, 25 NRC March 25, 1987, as modified by " Order (Correcting Errata in Partial Initial Decision)" (March 27, 1987) ...................... passim
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Public Service Co. of New Hanpshire (Seabrook St.ation,
~Cnits 1 and 2), Memorandtsn and Order (Denying SAPL's /
Sbtion of February 5, .198 7) (March 23, 1987) . . . . . . . . . . . . . 11, 12 A F i
Public Service Co. of New Hanpshire (Seabrook Station, thits 1 and 2), Memorandtsn and Order (Denying Mass. '
- Mot ion of March 3, 1987) (March 25, 1987) . . . . . . . . . . . . . . . . 11, 12 Public Service Co. of New Hanpshire (Seabrook Station, Tits 1 ardi 2), "Memoran&m and Order" (Denyingr Mass.' abtion of January 12, 1987)" (February C, 1987) ... 11 Public Service Co. of New Hanpshire (Seabrook Station, thi ts I and 2), IBP-86-25, 24 MIC 141 (1986); '. . . . . . . . . . . . . 10 Public Service Co. of New Honpahlre (Seabrook Station, Lhits 1 and 2), "Ahmrandian and Order (Memoralizing
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Prehearing Conference, and Ruling on Motions for Stannary Disposition)" (May 11, 1983), appeal dismissed, AIAB-731, 17 NRC 1073 (198 3 ) . . . . . . . . . . . 4. . . . . . . . . . . . . . . . 13, 14 b
STA7UIES '
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42'II.S.C. I 2239(a) ........................................ 9-10 .
42 U.S.C. I 2242 ........................................... 10 >
> t REGJIATIOS ' 1 10 C.F.R. I 2.720(h) ....................................... 15 10 C.F.R. I 2.758 ...........'............................... 10 10 C.F.R. I 2.788(e) ....................................... 3, 4 10 C.F.R. I 50.47(d) ....................................... 9, 10
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10 C.F.R. I 50.54(s)(2)(fi) ................................ 12 10'C.F.R. I 50.57(c) ....................................... 6, 9, 10 1 ,
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_y PAGE(S) r.11SrFJ.TANBOUS futBG-0737,' Supplement 1 ................................... 14, 15
- Proposed Rule, " Licensing of Nuclear Power Plants Wherc State and/or Incal Governments Decline to Cooperate in Off-Site Ebergency Planning," 52 Fed.
Reg. 6980 (March 6, 1987) ................................ 9 Statenent of Interim Policy, "2bclear Power Plant Accident Considerations thder the National Dwirormental Policy Act of 1969," 45 Fed.
Peg. 40101 (June 13, 1980) ............................... 13 i
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
) Docket Nos. 50-443 OL-1 PUBLIC SERVICE COMPANY OF ) 50-444 OL-1 NEW IIAMPSHIRE, eM. ) Onsite Emergency Planning
) and Safety Issues (Seabrook Station, Units 1 and 2) )
NRC STAFF'S RESPONSE TO STAY APPLICATIONS i FILED BY SAPL, NECNP, THE TOWN OF HAMPTON, -
AND TIIE MASSACHUSETTS ATTORNEY GENERAL INTRODUCTION On March 25, 1987, the Licensing Board issued its Partial Initial Decision ("PID"), authorizing issuance of a license to operate Seabrook Station, Unit 1, at up to 5% of rated power, subject to a condition imposed witn respect to an environmental qualification issue (PID, slip op, e
at 66-67). II No low power license could be issued, however, since the Commission stayed issuance of the license on January 9, 1987, in the absence of a properly docketed offsite emergency plan for Massachusetts portions of the plume exposure pathway emergency planning zone (EPZ).
While the Applicants . have now submitted an emergency " plan" for Massachusetts, the Commission has yet to decide whether that plan
-1/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LB P-87-10, 25 NRC (March 25, 1987), as modified by
" Order (Correcting Errata in Partial Initial Decision)", dated March 27, 1987. The Board identified three further conditions, relating to the Safety Parameter Display System (SPDS) , which it required the Applicants to satisfy prior to issuance of a full power license (PID, slip op. at 68).
- . - - ~ - , . - _ , - . _
I satisfies the Commission's requirement in CLI-87-02, 2/ that there be a state, local .or utility plan for Massachusetts portions of the EPZ prior to issuance of a low power license for Seabrook. Consequently, low power Ifcense issuance is currently stayed.
After the Commission had stayed issuance of the low power license, four additional stay requests, asserting further grounds for a stay, were filed before the Appeal Board by Massachusetts Attorney General James M.
Shannon, NECNP, SAPL, and the Town of Hampton. On May 8,1987, the Appeal Board denied all four of these additional stay requests. 3_/ Stay applications were then filed by those parties before the Commission, presenting many of the same issues that were raised before the Appeal Board b The NRC Staff (" Staff") hereby files its response to the four stay applicailons. 5_/ For the reasons set forth in ALAB-865 and in the
-2/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-02, 25 NRC ( April 9,1987).
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3/ Public Service Co. of New Hampshire (Seabrook Station , Units 1 and 2), ALAB-865, 25 NRC (May 8,1987).
-4/ See (a) " Attorney General James M. Shannon's Application For a i Efay of Licensing Board Order Authorizing Issuance of Operating License to Conduct Low-Power Operation," dated May 13, 1987 l
(" Mass AG"); (b) "New England Coalition on Nuclear Pollution's l Motion for a Stay of a Low Power Operation Pending Full Power Decision or Appellate Review ," dated May 14, 1987 ("NECNP");
(c) " Seacoast Anti-Pollution League's Motion for Continuation of the Stay of the Partial Initial Decision Pending the Outcome of Appeals L Thereof," dated May 14,1987 ("SAPL"); and (d) " Town of Hampton l Motion for a Stay of Licensing Board Order Authorizing Issuance of License to Conduct Low Power Operation," dated May 22, 1987
! ("Hampton") .
-5/ On May 26,1987, the Commission granted the Staff's motion for leave to file a single response to the four stay applications and for an extension of the page limitation, to be filed by June 8,1987.
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o following discussion, the pending stay requests should be Qenied for failing to demonstrate that a stay is warranted. 6,/
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DISCUSSION A. Legal Standards Governing Stay Requests.
Pursuant to 10 C.F.R. I 2.788(e), an application for a stay is to be considered in light of the following criteria:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies. U Of these four factors, no one single factor is necessarily dispositive of a stay request; rather, the strength or weakness of the movant's showing on a particular factor will determine how strong his showing on the other factors must be in order to justify a stay. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820,
-6/ NECNP cites a statement made by the NRC Staff's project manager for Seabrook, that the Staff could be prepared to issue a low power license "within hours" of a Commission decision to lift the existing i stay. However, the Staff is currently reviewing certain recent developments affecting the license application and is awaiting receipt of related information from the Applicants. Accordingly, depending upon the timing and acceptability of the Applicants' submittals, the low power license could be issued within several days after a decision is made by the Commission to lift the existing stay.
7/
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10 C.F.R. I 2.788(c) incorporates the criteria established in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F. 2d 921, 925 (D.C. Cir. 1958). See, eJ. ., Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 691 (1982).
22 NRC 743, 746 n.8 (1985). Ilowever, the most crucial factor has often been found to be the question of irreparable injury, and a stay will ordinarily not be granted without a demonstration that the movants will suffer irreparable injury in the absence of the stay. See, eg, Philadelphia Electric Co. (Limerick Generating Station , Units 1 and 2),
ALAB-789, 20 NRC 1443,1446 (1984); Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-481, 7 NRC 807, 808 (1978).
t'here there is no showing of irreparable injury, the movants must 4
demonstrate "that a reversal of the decision under attack is not merely likely, but a virtual dertainty." Perry, supra, 22 NRC at 746 n.8. -
P B. The Pending Stay Requests.
The movants have failed to make the required showing with respect to each of the four standards set forth in 10 C.F.R. I 2.788(e), for the following reasons.
(1) Likelihood of Success on the Merits.
(a) Need to Supplement the EIS. !
The Attorney General asserts that the Licensing Board erred in not requiring the preparation of a supplemental Environmental Impact Statement
("EIS"), "to assess the costs and benefits of low power operation separately from the costs and benefits of full power operation, particularly
-8/ If the movant for a stay fails to meet its burden on the first two factors in 10 C.F.R. I 2.788(e), it is unnecessary to " dwell long on whether a stay would cause serious injury to the applicant" or to
" delve deeply into public interest considerations." Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630, 1633 (1984).
since it now appears that no full-power operating license is likely to be issued" (Mats AG at 3; see also NECNP at 4-7). b The Commission's decisions in Shoreham EI control the resolution of this issue. In CLI-84-9, the Commission stated that, "in the usual case
. NEPA does not require any separate environmental analysis of the proposal to issue a low power operating license," because the low power license "is simply a small component or intermediate step to the full-power license" and the environmental evaluation for low power operation is subsumed in the EIS for full power operation. Id. ,19 NRC at 1326. EI Further, the Commission found that the Intervenor's belief that Shoreham would never receive a full power license was " based on its speculation on the outcome
-S/ The final environmental impact statement for operation of Seabrook
- e' was issued in December 1982. See " Final Environmental Statement Related to the Operation of Seabrook Station, Units 1 and 2,"
NUREG-0895 (December 1982) (admitted into evidence as Staff Exh. 2, at 1-Tr.1754 (August 23, 1983)).
-10/ See Long Island Lighting Co. (Shoreham Nuclear Power Station) .
'CD-8 5-12, 21 NRC 1587 (1985) (reaffirming CLI-84-9,19 NRC 1323 (1984)), stay pending appeal denied, Cuomo v. NRC, 772 F.2d 972 (D.C. Cir. 1986), appeal dismissed as moot, Id., F.2d (D.C. Cir., March , 1987). See also LongTaland'Tighting Co" (Shoreham Nuclear PWer Station), CL1-85-1, 21 NRC 275, 278-79 (1985).
-11/ The Commission in CLI-85-12 provided a general summary of the benefits and costs of low-power testing, finding that "the benefits of l . Iow power operation clearly outweigh the environmental costs." 21 NRC at 1590. The Commission observed the principal benefits of low power testing to be the early discovery and correction of problems
. . which might otherwise prevent or delay full power operation; the
" evaluation , assessment and familiarization with technical specif1-l cations and operating procedures"; and the provision of " operator and plant staff experience on the actual plant in a critical but still low power operation." Id. , at 1590, 1591. Arrayed against these benefits were the "well Tnown" environmental effects of low power l testing, "f.e., moderate irradiation of the core and contamination of '
- the remainder of the primary coolant system , with no significant impact on the surrounding environment by releases of effluents during normal operation." Id., at 1590.
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, of the adjudication of offsite emergency planning issues." The Commission rejected such " speculation", and held that uncertainty over the outcome of offsite emergency planning litigation, like other contested full power issues, did not require the preparation of a low-power EIS. Id. at 1327.
In CLI-85-12, the Commission reaffirmed its decision in CLI-84-9, following the issuance of decisions adverse to LILCO by a New York Supreme Court and a federal District Court, b and the development of confusion as to whether Suffolk County might participate in emergency planning. The Commission adhered to its determination that uncertainty over the outcome of full power issues does not require the preparation of a
" [r]egardless of what is 'the County's' supplemental EIS, stating that position," and notwithstanding the fact that the court decisions " affect the degree of uncertainty over whether Shoreham will get a full power license." CLI-85-12, 21 NRC at 1589. The Commission observed that j whenever a low power motion is filed while full-power issues are pending
("a common occurrence"), there is always uncertainty over the outcome of the full-power proceeding; however, delaying the low-power license until that uncertainty is resolved would eliminate the benefits of early low-power testing, and would ignore 10 C.F.R. I 50.57(c), which permits low power operation where there is reasonable assurance that such operation presents no undue risk to the public health and safety despite the pendency. of
_12/ The New York Supreme Court found that LILCO lacked the legal authority to implement its offsite emergency plan, while the federal District Court found that Suffolk County could not be compelled to participate in offsite emergency preparedness. See Cuomo v.
Long Island Lighting Co. , No. 84-4615 (N.Y. Sup. T. , Feb. 20, 1985), aff'd , 511 N.Y.S. 2d 867 (App. Div., Feb. 9, 1987);
Citizens for an Orderly Energy Policy, Inc. v. County of Suffolk, 604 F. Supp. 1084 (E.D.N. Y. 1985), aff'd per curiam, 813 F.2d 570 (2nd Cir. , March 9,1987).
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. full-power issues. Id., at 1590, 1591; accord, Cuomo v. NRC, 772 F.2d at 976-77. .
The uncertainties recited by Intervenors here do not warrant a different result than that reached by the Commission in Shoreham.
While the Attorney General argues that the Commonwealth of Massachusetts and the Massachusetts towns in the EPZ have " consistently" refused to participate in emergency planning unlike Shoreham where the County Executive reversed his position (Mass AG at 7), the Commission in Shoreham indicated that regardless of the County's current position, it was confident that the State and County would participate in emergency planning once the Commission reached a final health and safety deter-mination. On this basis, the Commission determined it would "not take as an element of uncertainty in the eventual full-power operation of Shoreham the possibility that cither the State or the County will refuse to cooperate." CL1-85-12, 21 NRC at 1589-90. I3/ The confidence expressed by the Commission in Shoreham leads to the conclusion here that the Commonwealth and towns in 51assachusetts will participate in emergency 13/ The Attorney General asserts that the Commission has distinguished
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the Seabrook proceeding from Shoreham (Mass AG at 4, citing That assertion is incorrect.
CLI-87-02, slip op. at 6). The Commission is considering the significance of the Applicants' April 8, 1987 submittal of draft emergency plans for Massachusetts, to determine whether that submittal satisfies the Commission's 2
requirement in, CLI-87-02 that the Applicants submit a state, local or utility plan for Massachusetts. The Commission may determine that -
the Applicants' submittal satisfies this requirement, at least insofar as necessary to authorize issuance of a low power license as had been done in the Shoreham proceeding. That decision will resolve, as well, the Town of Hampton's assertions that " insuperable obstacles" stand in the way of full power licensing for Seabrook (Hampton at 2-4).
planning once the Commission reaches a final health and safety decision'.
The Attorney General further claims that the Applicants have not submitted a compensatory emergency plan for Massachusetts portions of the EPZ, unlike Shoreham where the utility submitted a compensatory " utility plan" (Mass AG at 4). However, the Commission issued CLI-85-12 knowing that a New York court had found that LILCO could not implement its offsite plan and a federal court had found that the County could not be compelled to participate in emergency planning; thus, there remained substantial uncertainty as to whether LILCO's plan would be implemented.
Further, even if the Commission determines that a State, local or utility plan has not been submitted here. E other factors could lead to the
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14/ NECNP attempts to distinguish this case from the decision in Cuomo
- v. NRC, supra, on the grounds that there, (a) the Licensing Board had found that "an adequate emergency plan was achievable," and (b) the County Executive had changed his position suggesting that the County might still participate in emergency planning (NECNP at 8 n.10). These facts do not distinguish Cuomo. First, while LILCO's plan was found to be feasible, implementation of that plan was recognized to be contingent on participation by State or local 6
officials. In this regard, while the County Executive's position had changed, the Court of Appeals noted that this shift had been nullified by judicial action and had been rejected by the County legislature; and it observed that additional litigation and political confrontation appeared likely, and it was therefore " virtually impossible to predict how long the State and County will maintain
! their opposition to the emergency evacuation plan." Id. , 772 F.2d
. at 975. Despite these uncertainties, the Court went on to approve the Commission's " central conclusion" that "some possibility always exists at the time a low power license is issued that a final operating license may not be granted," but that NEPA did not require pre-paration of a supplemental EIS every time there is a change in the risk that a full power license might not be granted. Id., at 975-76.
M/ On April 8,1987, the Applicants filed an extensive set of emergency plans for Massachusetts portions of the EPZ, which the Applicants initially characterized as "a utility plan" . See Applicants' (FOOTNOTE CONTINUED ON NEXT PAGE)
, _g_
issuance of a full power license for Seabrook, eg, a change in. the views of the current or future leadership' of the Commonwealth of Massachusetts, or a determination that the Commonwealth of Massachusetts and/or Massachusetts towns located in the EPZ will cooperate in the event of an
, emergency by implementing the emergency plan filed by the Applicants, b Finally, assuming that NECNP's characterization of the recent Securities and Exchange Commission filing is correct (NECNP at 6), the cited statement that "Seabrook would become economically unviable given a prolonged delay in licensing" does not provide any indication as to how
" prolonged" a delay would cause the plant to become "unviable".
Accordingly, this statement does not establish new circumstances requiring the preparation of a supplemental EIS.
(b) Violations of Atomic Energy Act.
The Attorney General and NECNP assert that the issuance of a low power license prior to the resolution of offsite emergency planning issues,
, pursuant to 10 C.F.R. Il 50.47(d) and 50.57(c), deprives them of their right to a hearing under Section 189(a) of the Atomic Energy Act, 42 i
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) j ,
" Suggestion of Mootness and Request for Vacation of Stay," filed on April 7,1987, at 2. The significance of this submittal is currently under consideration by the Commission, and has previously been addressed by the parties. See, eg, "NRC Staff's Response to Applicants' ' Suggestion of Mootness and Request for Vacation of Stay'," filed May 1,1987.
-16/ See also, Proposed Rule, " Licensing of Nuclear Power Plants Where State and/or Local Governments Decline to Cooperate in Offsite l Emergency Planning," 52 Fed. Reg. 6980 (March 6,1987). NECNP's argument that this proposed rule change "would not survive judicial review" merely represents NECNP's view and is not entitled to ;
serious consideration here. I
7, U.S.C. 12239(a) (Mass AG at 6-8; NECNP at 3-4). The Commission has previously. rejected related arguments. See Long Island Lighting Co.
(Shoreham Station , Unit 1), CLI-85-1, 21 NRC 275, 278-79 (1985).
Likewise, the Appeal Board in this proceeding has approved the issuance of fuel load and low power licenses, pursuant to 10 C.F.R $$ 50.47(d) and 50.57(c), despite the pendency of full power issues. Public Service
! Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC (Dec. 8,1986), shp op. at 11-13; Id. , ALAB-853, 24 NRC 711, 716-18 (1986), set aside on other grounds, CLI-87-02, supra. EI The Attorney Gberal now urges the Commission to " recognize the invalidity" of 10 C.F.R. I 50.47(d), or to find that the Licensing Board abused its discretion in denying the Attorney General's petition for waiver 1
2 of that regulation under 10 C.F.R. I 2.758 (Mass AG at 7, 8). The Attorney General's request that I 50.47(d) be revoked is inappropriate for consideration in an individual licensing proceeding, as the Licensing Board indicated. EI Further, t*.e petition for waiver was denied for failing to demonstrate special circumstances that application of I 50.47(d) in this proceeding would not serve the purpose for which that regulation was adopted. E The Attorney General has not demonstrated any reason to ,
-17/ The Attorrey General and NECNP also assert that the Commission lacks the authority to issue a low power license prior to resolution of all licensing issues, in that the statutory authorization to issue temporary licenses prior to the completion of hearings, 42 U.S.C.
52242, has expired (Mass AG at 7; NECNP at 3-4). This argument is misplaced, in that the Applicants are not seeking a temporary operating license pursuant to the cited statutory provision.
-18/ See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-25, 24 NRC 141,143 :1986).
19/ Id. , 24 NRC at 145,147.
believe that the Board abused its discretion in so finding and in denying his petition for waiver. Accordingly, these assertions should be rejected.
(c) Means for Notification of the Public.
The Attorney General asserts that the Licensing Board erroneously rejected two late-filed contentions concerning the alert / notification system (f. lass AG at 5-6). The first contention asserted that the sirens ir.
Merrimac, MA, had failed to meet NRC/ FEMA' sound level acceptance criteria. The second contention asserted that the sirens in East Kingston, NH, malfunctioned when tested and that the sirens in two other New Hampshire towns had been ordered removed by a New Hampshire Superior Court. Similar assertions are made by SAPL and the Town of Hampton, particularly with respect to the Superior Court decision (SAPL at 6-8; e t~.
Hampton at 4-6).
The Licensing Board found these contentions had failed to satisfy the Commission's criteria for late-filed contentions and did not support a reopening of the record b The Board found, inter alia, (1) that the Applicants were taking corrective measures to ensure that the malfunctions experienced in testing the East Kingston sirens do not recur, and SAPL's affiant had not stated that those problems were insurmountable or incapable of solution (Order of March 23,1987, at 8-9); (2) that the New Hampshire court's decision was stayed pending appeal and therefore has no current safety significance, while public safety is assured in the future 2
-20/ See " Memorandum and Order (Denying SAPL's Motion of February 6 IMf7)", dated March 23, 1987; and " Memorandum and Order (Denying i Mass.' Motion of March 3,1987)", dated March 23, 1987. See also, l
( " Memorandum and Order (Denying Mass.' Motion of January 12, j 1987)," dated February 6,1987.
. (should the court's decision be affirmed) by 10 C.F.R. I 50.54(s)(2)(ii)
(Id. , at 9); and (3) that re-measurement of the background sound levels near the Merrimac sirens, using the proper frequency band rather than that utilized for the initial measurements, demonstrated that the sirens meet NRC/ FEMA requirements (Order of March 25, 1987, at 14, 16). The Board's decisions arc well supported and do not represent "an abuse of discretion" (Mass AG at 6). On reviewing the stay applications filed before it, the Appeal Board found that the movants had not shown a likelihood of success on an appeal of these matters. ALAB-865, slip op. at 20, 22-23.
SAPL contends that the Commission should assume the New Hampshire court's decision will be upheld on appeal (SAPL at 7-8). The Town of Hampton further points out that the New Hampshire RERP does not contain an alternative provision for public notification in the affected towns (Hamptun at 4). As SAPL concedes, however, the court's decision has been stayed pending resolution of the Applicants' appeal (SAPL at 7), and the - sirens are available for use at this time. The Licensing Board correctly determined that , if the trial court's decision is affirmed on 4
appeal, public safety would be assured by 10 C.F.R. I 50.54(s)(2)(ii).
Accordingly, the intervenors have failed to demonstrate a likelihood of success on the merits with regard to this issue. b i
i .
-21/ Both SAPL and the Town of Hampton refer to a recent decision by a federal District Court which denied Applicants' request for a temporary restraining order to preclude the removal of the sirens from the Town of West Newbury, MA (SAPL at 7; Hampton at 6 n.8). Public Service Co. of New Hampshire v. Town of West Newbury, No. 87-1140-K (D. Mass . , May 6, 1987),
injunction granted pending appeal, No. 87-1395 (1st Cir. , May 7,
, (FOOTNOTE CONTINUED ON NEXT PAGE) 4
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(d) Consideration of Class 9 Accidents.
The Attorney General and SAPL assert (Mass AG at 6; SAPL at 2-4) that the Licensing Board erroneously granted Applicants' motion for summary disposition of SAPL Supplemental Contention 3, in an Order dated May 11,1983. El SAPL Supplemental Contention 3 had asserted that the FES for Seabrook (Staff Exh. 2) gives inadequate consideration to Class 9' accidents under the Commission's Interim Policy Statement of June 13, 1980. EI The Licensing Board determined, as a matter of law, that the FES complied with the Commission's directives in its interim policy statement .(Order of May 11, 1983, at 30, 35) . The Licensing Board found that the Scabrook FES contained an extensive accident analysis in full compliance with the Commission's Interim Policy Statement, and properly granted summary disposition of the contention. E Neither the Attorney
. General nor SAPL specify any factual error in the Licensing Board's (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 1987) (Hampton Exhibit C). The Court of Appeals' entry of an injunction appears to have an effect similar to that of the New Hampshire state court decision, and does not warrant a different conclusion with respect-.ta the stay applications here.
-22/ " Memorandum and Order (Memorializing Prehearing Conference, and Ruling on Motions for Summary Disposition)," dated May 11, 1983.
. SAPL's appeal from the Board's disposition of this contention was dismissed, and its petition for directed certification denied , in Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-731,17 NRC 1073 (1983).
-23/ Statement of Interim Policy, " Nuclear Power Plant Accident Consid-erations Under the National Environmental Policy Act of 1969," 45 Fed. Reg. 40101 (June 13,1980).
24/ See also, "NRC Staff Response to Seacoast Anti-Pollution League's
~~
Motion for Summary Disposition (Contention SAPL Supp. III)," dated March 23,1983, at 8 n.2.
t decision. b SAPL contends the Board erred in ruling on Applicants' l
motion as a matter of law rather than of fact, but fails to specify what the precise err'or was . The Licensing Board's determination has been
. approved by the Appeal Board, in its decision denying the stay applications filed before it. See ALAB-865, slip op, at 17-18. For the reasons set forth therein, the movants have failed to demonstrate a likelihood of succeeding on the merits of their appeal as to this issue.
(c) Safety Parameter Display System.
SAPL asserts that the Licensing Board erred in failing to require a
" fully compliant" safety parameter display system (SPDS) prior to issuance of a low power license (SAPL at 4-5). The Licensing Board gave proper
- consideration to SAPL's assertions, noting that NUREG-0737, Supplement 1, did not include the SPDS among the TMI items required to be in place prior to fuel load or initial criticality,' and that it permitted the Staff and
- Applicants to establish a mutually acceptable schedule for implementation of i
the SPDS (PID at 9). The Board required the Applicants to deminstrate reasonable absurance that the public health and safety would be pr >tected if deficiencies in the SPDS were deferred until the first refueling outage.
The Board found that most of the deficiencies could be deferred until the l first refueling outage, but that the Applicants had not sustained their l
'"~25/ SAPL essentially makes one factual assertion, in contending that "the l
. assumptions used in the probabilistic risk assessment were faulty and bore no reasonable relationship to the Seabrook site, and ignored the site specific data" (SAPL at 3). The Licensing Board found ,
however, that (1) SAPL failed to provide an affidavit to support its assertions, (2) the Staff's affiant had adequately explained that the I
assumptions used in the FES bounded the actual conditions for emergency planning, and (3) SAPL had provided no evidence to show otherwise. Order of May 11, 1983, at 33, 34. SAPL's stay I
request does not contest these determinations.
burden as to certain other deficiencies, which the Board determfned could be deferred for 5% power operation without undue risk to the public health and safety (PID at 12). SAPL has not asserted that the Board's deferral of these items poses an undue rish to the public health and safety, nor has it provided any basis to support its belief that under NUREG-0737 or NRC regulations, all SPDS deficiencies must be resolved prior to low power operation.
(f) Failure to Require Implementation of the SPDS Schedule and Failure to Call Staff Project Manager As A Witness.
SAPL. asserts that the Licensing Board erred in refusing to call the NRC Staff project manager for Seabrcok to testify as to why the schedule agreed to by the Staff and Applicants for implementation of the SPDS had not been enforced, and in falling to have required the implementation of that schedule as agreed (SAPL at 5). The Licensing Board properly f
resolved these issues. In response to SAPL's motion to compel the project manager's attendance, on September 20, 1986, the Board found that SAPL l
had failed to request the issuance of a subpoena ad testificandum (Tr. 51), that it had failed to demonstrate general relevancy (Tr. 52),
that it had not demonstrated exceptional circumstances as required by 10 C.F.R. I 2.720(h) (Tr. 52-5M, E and that the timing issue raised by SAPL was not in issue (Tr. 53-55) . SAPL has failed to provide any reason to believe that these rulings were incorrect. Further, no l t
-26/ 10 C.F.R. I 2.720(h) provides that the designation of Staff witnesses is to be made by the Executive Director for Operations, and the attandance and testimony of any other NRC personnel may only be compelled upon "a showing of exceptional circumstances, such as in a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the l witnesses made available by the Executive Director for Operations."
l
l 1
I demonstration has been made that an agreement between an applicant and the Staff as to the timing for full implementation of the SPDS cannot subsequently be modified or set aside by those parties.
. (2) Irreparable Injury.
The Attorney General asserts that irreparable harm will be caused by Iow power operation, in that (a) high-level radioactive waste will accumulate from low power operation, resulting in additional costs and the need for safeguarding and permanent disposal of the waste; (b) irradiation of the fuel and plant components will occur; (c) worker exposure to potentially harmful radiation will occur; (d) the irradiated fuel and plant components will lose their salvage value; and (e) the Attorney General will have irrevocably lost his right to have his appeal decided prior to low power operation (Mass AG at 8-9). NECNP makes similar assertions (NECNP at 7-8), and it further asserts that "should a radiological accident occur," it would cause " irreversible health damage" to the surrounding population (Id. , at 8). b Some of these assertions are also made by the Town of Hampton (Hampton at 6-7),
i Similar assertions have been considered and rejected in other pro-i
! ceedings. In the Shoreham proceeding, the Court of Appeals held that j
irreparable harm from low power testing was not established by assertions I
concerning (a) im diation of the reactor; (b) worker exposure to i
""-27/ NECNP further asserts, without explanation, that the issuance of a low power license without first reaching a "no significant hazards consideration" finding, and without first conducting a low power environmental analysis, results in irreparable harm p_e_r se (NECNP at 8). Of course, a "no significant hazards" flifdiiig is not l
appropriate in an initial operating license proceeding, since prior notice and opportunity for hearing must precede such a license, as l was the case here.
radiation; (c) the remote possibility that radiation might be released into the su'rrounding environment; or (d) the potential mooting of Intervenors' claims in the absence of a stay. EI Further, as the Commission has 4 stated, the consequences of low power operation are well known, are subsumed within the consequences of full power operation which were analyzed in the FES, and do not support the conclusion that low power operation will irreparably damage the environment. See CLI-84-9,19 NRC l at 1326-27. E In sum, low power operation has not been shown to result in irreparable harm.
(3) ~ Harm to Other Parties.
The movants assert that a stay of low power operation will not result in harm to the Applicants, in that full power operation will not occur for at least a year -- and they assert that full power operation may never e r.
occur given the lack of emergency planning for Massachusetts (Mass AG at 9; NECNP at 9). Further, they assert that the benefits of early low power operation will be lost in the event of a lengthy delay prior to issuance of a full power license, and that the Applicants will benefit from a stay by avoiding an unnecessary expenditure of time and money (Mass i
'--28/
Cuomo, su ra, 772 F.2d at 976-77. Accord, Duke Power Co.
(Catawba 'uc ear Station, Units 1 and 2), ALAB-794, 20 NRC 1630,
- 1633-35 (1984). See also, Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-8 4-5 , 19 NRC 953, 964 (1984) (radiation releases); Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 748 n.20 (1985) (speculation about a nuclear accident); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), A LAB-810, 21 NRC 1616,1620 (1985) (mooting of intervenor's claims).
-29/ See also, Toledo Edison Co. (Davis-Besse Nuclear Power Station ,
Units 1, 2, and 3), ALAB-385, 5 NRC 621 (1977) (consequences that are curable by Applicants' expenditure of funds do not establish irreparable harm).
AG at 9; NECNP at 9-10). In this regard, NECNP notes that the Appeal Board ' resolved the issue of harm to the Applicants in favor of the Intervenors (NECNP at 8-9, citing ALAB-865, slip op, at 29).
. The Commission has previously considered and rejected similar assertions in the Shorcham proceeding, finding substantial value in low power testing even in the face of uncertainties as to whether a full power license will be issued. CLI-85-12, 21 NRC at 1590. b These determinations should be reaffirmed here.
(4) Where The Public Interest Lies.
The movants assert that the public interest favors a stay of the low power license, given the environmental impacts of low power operation and the uncertainties as to whether a full power license will be issued, at least until full power operation becomes more certain. The Commission has previously addressed this matter in the Shoreham proceeding, where it found the public interest favors issuance of the low power license. This determination should be reaffirmed here, if tne Commission determines that the Applicants' submittal of draft emergency plans for hlassachusetts i
resolves the inadequacies noted in CLI-87-02.
CONCLUSION I
For the reasons set forth above, in the event the Commission
- determines that the Applicants have submitted a state, local or utility l
l
-30/ See also, Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-404, 5 NRC 1185,1188 (1977) (intervenors would not be permitted to argue that applicant's expenditures might be rendered unnecessary by a stay).
l i
plan for Massachusetts, as required in CLI-87-02, the movants' pending stay requests should be denied.
Respectfully submitted, I% D Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, Maryland thic 6th day of June,1987
.i i.
l i
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4
, UNITED STATES OF AMERICA 87 JLN 10 A9 59 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION gf. .
In the Matter of )
) Docket Nos. 50-443 OL-01 PUDLIC SERVICE COMPANY OF ) 50-444 OL-01 '
NEW HAMPSHIRE, et al. ) On-site Emergency Planning
) and Safety Issues (Seabrook Station, Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO STAY ,
APPLICATIONS FILED BY SAPL, NECNP, THE TOWN OF HAMPTON, AND THE MASSACHUSETTS ATTORNEY GENERAL" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class , as indicated by an . asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by double
. asterisk, by express mail, this 8th day of June,1987.
Sheldon J. Wolfe, Esq. , Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge l Atomic Safety and Licensing Board Atomic Safety and Licensing Board
! U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour
- Ms. Carol Sneider, Esq. **
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office' of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC 20555 Boston, MA 02108 Beverly. Hollingworth Richard A. Hampe, Esq.
, 209 Winnacunnet Road New Hampshire Civil Defense Agency Hampton, NH 03842 107 Pleasant Street Concord, NH 03301
' Sandra Gavutis, Chairman Calvin A. Canney, City Manager Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801 l
I Stephen E. Merrill Paul McEachern, Esq.**i '
Attorney General Matthew T. Brock, Esq.
George Dana Bisbee Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Office of the Attorney General P.O. Box 360
, 25 Capitol Street Portsmouth, NH 03801 Concord, Nil 03301 Roberta C. Pevear
- Angic Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls 25 Iligh Rond Drinkwater Road Newbury, MA 09150 Hampton Falls, NH 03844-Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq. Robert A. Backus, Esq.**
McKay, Murphy and Graham Backus, Meyer & Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.** Philip Ahren, Esq.
Harmon & Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr. , Esq.**
Federal Emergency Management Agency Ropes & Gray 442 J.W. McCormack (POCH) 225 Franklin Street Doston, MA 02109 Boston, MA 02110 l
H.J. Flynn, Esq. William Armstrong l
Assistant General Counsel Civil Defense Director l
Federal Emergency Management Agency Town of Exeter l 500 C Street, SW 10 Front Street
! Wushington, DC 20472 Exeter, NH 03833
(
l* Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel
- Board *
! . U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission j Washington, DC 20555 Washington, DC 20555 l
~,. - - - _ _ - . . _ , _ - - _ . _ - _ . _ _ _ _ . . _ - - _ . , _ _ ._ . - - --
Jane Doughty Docketing and Service Section*
Scacoast ' Anti-Pollution League Office of the Secretary 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555
. Maynard L. Young, Chairman William S. Lord Board of Sclectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman Peter J. Matthews, Mayor -
Board of Selectmen City Hall South flampton, NH 03287 Newburyport, MN 09150 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.
Board of. Selectmen Silverglate, Gertner, Baker Town Office , Fine and Good Atlantic Avenue 88 Broad Street North Hampton, NH 03862 Boston, MA 02110 R. K. Gad III, Esq. Mrs. Anne E. Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq.
Holmes & Ellis 47 Winnacunnet Road Hampton, NH 03842
- . Y< V Sherwin E. Turk i Senior Supervisory Trial Attorney e
l l