ML20215D630

Memorandum & Order CLI-87-03.* Util Motion to Vacate Order CLI-87-02 as Moot & to Lift Stay on Low Power Operations Denied Until Util Can Provide Bona Fide Offsite Emergency Plan for State of Ma.Served on 870612

ML20215D630
Person / Time
Site:	Seabrook
Issue date:	06/11/1987
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	PUBLIC SERVICE CO. OF NEW HAMPSHIRE
References
CON-#287-3770 CLI-87-02, CLI-87-03, CLI-87-2, CLI-87-3, OL-1, NUDOCS 8706190087
Download: ML20215D630 (12)

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UNITED STATES OF AMERICA 87 JUN 11 PS :45 NUCLEAR REGULATORY COMMISSION yU :. '

COMMISSIONERS: occ'. g ,

Lando W. Zech, Jr., Chairman

. Thomas M. Roberts James K. Asselstine SERVED JUN J 2 ISN Frederick M. Bernthal Kenneth M. Carr ,

E 'In the Matter of PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE,~ET AL. 50-444-OL-1

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(Onsite Emergency Planning (Seabrook Station, Units 1 andSafetyIssues)-

and2).-

. MEMORANDUM AND ORDER CLI-87-03 Today we deny the motion of Public Service Company of New Hampshire ("PSNH" or " Applicants") to vacate our decision in CLI-87-021 as moot and to lift the stay on low power operations at -

Seabrook. The result of today's decision is that under existing circumstances there can be no low power operation at Seabrook beyond fuel loading and precriticality testing unless and until the Applicants file a bona fide utility offsite emergency plan for Massachusetts that satisfies the Commission's threshold requirements.

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I This docket, 25 NRC (April 9,1987).

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As we explain below, the plan which PSNH filed with the Commission on April 8 is not, in fact, a bona fide utility plan, and cannot by its very nature satisfy the Commission's threshold requirements'specified

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i- in CLI-87-02.

I. Background I

A. Proceedings Before Adjudicatory Boards By order dated October 7,1986, the Licensing Board designated to hear onsite emergency planning and safety issues authorized the issuance of an operating license allowing fuel loading and precriticality testing at Seabrook. See LBP-86-34, 24 NRC . The Attorney General of Massachusetts. (" Attorney General" or

" Massachusetts"), a party to this proceeding, appealed this decision to the Atomic Safety and Licensing Appeal Board (Appeal Board) on a single issue2 : whether 10 C.F.R. 50.33(g) requires that utility applicants file a radiological emergency response plan for the entire plume exposure pathway emergency planning zone (EPZ) for the facility

) before any license may be issued. It had been conceded that PSNH had not submitted such a plan for the portion of the EPZ that lies within 2Intervenor Seacoast Anti-Pollution League (SAPL) joined in the Attorney General's appeal and in addition raised separate issues.

For reasons explained by the Appeal Board (see ALAB 853, 24 NRC ,

slip op, at 2 n.2, November 20,1986) the original issue was heard and decided separately and is the sole issue of that phase reviewed by the Commission.

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the Comonwealth of Massachusetts. In ALAB-853, the Appeal Board decided that the lack of a plan for the entire Massachusetts portion of the Seabrook EPZ did not bar the issuance of. a license to permit 4

. low power operations.

B. Proceedings Before the Comission Shortly thereafter, the Comission comenced a deliberative  !

process on whether its sua sponte review of this issue would be <

warranted. The Commission recognized that although fuel loading and precriticality testing had gone forward, the Appeal Board's interpretation of the regulations expressed in ALAB-853 would, if unreviewed, become at the low-power stage subject to later modification or overruling by the Comission. Because the same issue would be relevant to any later decision on issuance of a low power license, the Comission decided sua sponte to resolve the issue so that the later decision on low power licensing could be made with Comission guidance in hand. Thus, on January 9,1987 the Comission took review. Order, this docket (unpublished), at 1 (January 9, l 1987).3 By the same order the Commission stayed the Director of Nuclear Reactor Regulation (NRR) from authorizing further low power operations at the Seabrook facility until the Commission's review was concluded.

I 3 See also CLI-87-02, 25 NRC , slip op. at 2 n.2. See id. at 2-4 for parties, their positions end the like which we need noFhere repeat.

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On consideration of the briefs submitted on review of ALAB-853, the Commission decided not to affirm the Appeal Board. It said:

We acknowledge that there is some merit to both sides' positions, and we comend the Appeal Board for its careful analysis of the question. But the question before us is not a strictly legal one, but rather a question of regulatory policy which ultimately we'alone should decide. In the special circumstances of this case our judgment is that sound policy favors the filing of a State, local,'or utility plan before any operating license is issued, including a license confined to' fuel loading or low power testing. ,

CLI-87-02 at 6.

Consistent with its decision the Comission left its stay in place, noting that on the eve of its formal affirmation of CLI-87-02

'it had received PSNH's notification that it was submitting "a utility emergency plan" .for that portion of the EPZ that lies in Massachusetts. PSNH had suggested that because of this new development the issue on review was moot, and requested the Commission to lift its stay. See PSNH's " Suggestion of Mootness and Request for Vacation of Stay," April 7,1987. Instead of deferring its CLI-87-02 decision, the Commission said it would consider PSNH's motion as one to vacate CLI-87-02 as moot and to lift the stay. It is that motion that we now decide.

II. Opinion A. The Issue The issue that governs the Commission's decision on the motion before us is whether PSNH's April 8,1987 submittal of "a utility emergency plan" for Seabrook satisfied the Comission's intent in

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y-CLI-87-02 in requiring the filing of a state or local governmental or utility plan.

Asexplainedbelow,CLI-87-02imposedtworequirementsi(1)PSNH

< was to file a bona fide utility plan, and (2) must demonstrate on summary review that adequate emergency planning is "at least in the realm of the possible." Since we find that PSNH's submittal fails to meet the first requirement, and therefore that the low power stay ,

must be maintained, we need not and do not address the further question of whether the second requirement can be met by PSNH's submittal.

B. The Standards - a bona fide utility plan In the circumstances of this proceeding, it is clear that neither the state nor local governments in Massachusetts had sponsored or currently intended to sponsor a plan. Thus it is beyond doubt that the Commission intended PSNH to submit a utility emergency plan.# It has very clearly been developed in Comission caselaw that a utility plan is one that provides measures to be taken by the utility to compensate for the absence of governmental participation in emergency planning. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 625, aff'd 4 The Commission here reiterates what it has stated in a variety of fora, that .it would welcome and prefer governmental participation.

Nonetheless, its decision in CLI-87-02 recognized the current unlikelihood of such participation occurring in the near future.

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I CLI-83-13,17NRC741(1983); Long Island Lighting Co., CLI-86-13, i l

24NRC-22(1986).

In CLI-87-02, the Commission required submittal of a plan in circumstances where "some of the materials that normally are essential to support a full power license under our regulations were I missing." Slip op. at 6. It cannot then be supposed that the Commission contemplated that it was requiring anything less than ,

1 would be required of any submittal of materials supporting a license  ;

application under the regulations. The very minimum for such a submittal.would be a bona fide utility plan. An adequate filing in this case would be'one intended for actual implementation as a utility emergency plan, and one intended to be subjected to Staff and FEMA review and litigation on that basis.

5 C. Positions of the Parties and Judgment of the Commission At the outset PSNH described its submittal as "a utility plan,"

but it did not repeat that characterization.6 Moreover, in effect 5

The parties that submitted views are the Applicant, New England Coalition or Nuclear Pollution, Seacoast Anti-Pollution League.

Massachusetts Attorney General James M. Shannon, Town of West Newbury, Town of Hampton, Town of Amesbury, and the NRC Staff. For l'

convenience we characterize generally as the opposing position the thrust of the Intervenors and Governmental entities, all of which

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1 that filed did so in opposition to PSNH's motion. We note that the L State of New Hampshire took no position in the instant matter.

6 See, Applicants' "Suogestion of Mootness and Request for (FootnoteContinued)

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PSNH 1ater conceded that its submittal was not a utility plan by acknowledging that it was a plan developed by the state for execution {

by the state, and contained no measures to compensate for the lack of governmental participation. Letter from George S. Thomas, April 24, J l

1987. The Applicants apparently were satisfied to fill this void by l the statement that such measures could be developed.7 The parties that oppose the motion and the Staff are in accord ,

that the plan is not in fact a utility plan.

There appears to be no dispute that PSNH's independent contribution to the plan that it submitted was solely a new cover page. For each volume each such page bears the marking "For Information Only." The letter of submittal includes a sworn statement by a cognizant official of the Applicant that the information in the plan is true "on knowledge and belief." PSNH does l

(FootnoteContinued)

Vacation of Stay at 214 (April 7,1987) and Letter from George S.

Thomas to NRC, April 8,1987 (transmitting " utility plan." Cf.

" Views of the Applicants in Response to CLI-87-02" and Lettei from George S. Thomas to NRC, April 24,1987 (clarification "to assist in thereviewandunderstandingofth[e] submittal").

7 Alternatively, PSNH appears to place reliance on a " realism" argument that the state and local governments would perform in an emergency under the plan that they had developed. " Views of the Applicants in Response to CLI-87-02" at 12. They also assert that due to various specified reasons, the governments will be capable of responding pursuant to the plans. Letter from George S. Thomas, supra, at 2. While " realism" may play a role in the ultimate decision on the acceptability of planning that lacks state participation, it cannot repair the void caused by the failure to submit a utility plan that reflects the utility's compensatory measures and efforts to facilitate the state's participation in the event of an emergency.

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A not specifically discuss as a separate matter the bona fides of its filing.

The parties in opposition take the position that the pian is not a good faith filing for a number of reasons, most significantly that 1

PSNH failed to eliminate information demonstrably known by it +c be obsolete or otherwise wrong, especially including participation of governmental and private institutions that had made contrary written ,

statements.

While the Staff does not directly address the good faith issue, it notes in the course of its evaluation that the plan includes a restrictive marking, "For Information Only". While Staff advises us l that PSNH has sought a meeting on the plan, Staff also informs us that PSNH has neither requested FEMA review nor suggested that litigation should commence on the merits of the plan in conjunction with their realism argument.

On balance, the Commission is unable to find that the submittal satisfies the intent of CLI-87-02. PSNH was (or certainly should have been) well aware that what it was submitting was not its plan, was not a utility plan, and contained obsolete and wrong information that no effort had been made to remove.8 Moreover, PSNH has marked the submitted plan "For Information Only" and has not specifically requested a FEMA review of the plan. Such a specific request, as the 8

See NRC Staff's Response to Applicants' " Suggestion of Mootness and Request for Vacation of Stey" at n.6 (May 1, 1987) and Affidavit there cited. See also Town of Amesbury's Response to Applicants'

" Suggestion of Mootness and Request for Vacation of Stay" at 215 April 10, 1987 and Exhibits A-C.

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staff points out, would be made in the normal course of events, were the plan' submitted with the intent to be implemented and as the subject of review and eventual findings on emergency planning adequacy. See NRC Staff's Response to Applicants' " Suggestion of. f i

Mootness and Request.for Vacation of Stay" at nn.15 and 19. J III. Judgment In light of the foregoing, the Comission finds-that the Applicants' submittal is insufficient to meet the requirement imposed on it by the Comission's decision in CLI-87-02. Accordingly the Comission neither vacates its decision nor lifts its stay.

Commissioners Carr and Roberts disapproved this order.

Comissioner Carr's dissenting views (with which Commissioner Roberts l agrees)areattached. Comissioner Asselstine's additional views are l

[ also attached.

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It is so ORDERED.

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b F the Commission a n, f 4 o

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Y n.h ,On:& '

W 5AMUEN CHILK T ~

JSecretary of(the Commissiorl

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Dated at Washington, D.C.

this , day of June, 1987.

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Cemmissioner Bernthal was not present for the formal affirmation of this order; had he been present he would have approved it. In order to allow the will of the majority to prevail, Commisioner Carr did not participate in the formal affirmation of this order.

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. COMMISSIONER CARR'S DISSENTING VIEWS:

I-dissent from this order for the simple. reason that I would not have: reversed ALAB-853, nor continued the stay and' embarked on the course that the majority chose in CLI-87-2. I offer no view on the correctness of the majority's. application of the criteria against which it assesses the adequacy of.the appli-

. cant's submittal of an emergency plan for the Commonwealth of Massachusetts.

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SEPARATE VIEWS OF COMMISSIONER ASSELSTINE

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' I approve th'e' order as .far. as 'it goes. I also.would.have found that the plan filed by:.the utility does'not. meet the threshold established.in CLI-87-02, i.e. that it does not demonstrate that. adequate emergency planning is "at least in the realm of the:possible."

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