ML20215F922
| ML20215F922 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/17/1986 |
| From: | Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#486-1961 ALAB-853, OL-1, NUDOCS 8612240118 | |
| Download: ML20215F922 (10) | |
Text
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00LMETED USNitC Dated:
December 17, 1986 T6 DEC 22 R2:37 UNITED STATES OF AMERICA CFF:X ? ~
OC L <.i '
r before the NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al.
)
50-444-OL-1
)
(On-site Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues)
)
)
APPLICANTS' ANSWER TO PETITION OF THE ATTORNEY GENERAL OF MASSACHUSETTS FOR REVIEW OF AN ORDER OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD Pursuant to 10 CFR S 2.786, the Applicants respectfully submit this answer in opposition to the petition of the Attorney General of the Commonwealth of Massachusetts (" Mass AG") seeking this Commission's review of an order of the Atomic Safety and Licensing Board (" Appeal Board"), which denied Mass AG's appeal of an order of the Atomic Safety and Licensing Board (" Licensing Board")t, which authorized the 1
Proceedings in the above-numbered dockets are ongoing before two Atomic Safety and Licensing Boards.
The so-called "On-Site Board", which authorized the issuance of a license to load fuel and conduct precriticality 8612240118 861217 PDR ADOCK 05000443 O
PDR OS03
issuance'of a license to load fuel and conduct precriticality testing at Seabrook Station Unit 1.
SUMMARY
OF PRIOR PROCEEDINGS on August 22, 1986, Applicants filed their " Motion for Authorization'to Issue License to Conduct' Fuel' Load and Precriticality Testing"
(" Applicants' Motion"), which sought
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permission to load fuel into Unit 1 of Seabrook Station and to conduct certain tests which would not require the reactor to go critical.
Mass AG opposed Applicants' Motion, asserting:
" Applicants have not complied with the provision of 10 C.F.R.5 50.33(g) requiring the submission of
' radiological 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.'
Insofar as the submission of all emergency response plans is a requirement of the license application, no license to conduct any activity may be issued until such
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regulation is satisfied."
j Attornev General Francis X.
Bellotti's Objection to f
Applicants' Motion for Autheirzation to Issue License to Conduct Fuel Load and Precriticalty Testing at 2 (emphasis original).
testing, is the " Licensing Board" referred to in this 1
answer.
i
! I
O g
On October 7, 1986, the Licensing Board issued an order granting Applicants' Motion.
Public Service Company of New Hampshire.(Seabrook Station, Units 1 and 2), LBP-86-34, 24 NRC (October 7, 1986).
On October 16, 1986, Mass AG orally requested the Appeal Board to grant a stay of the Licensing Board's order.
The Appeal Board granted a brief stay to allow Mass AG to make a written application.
Mass AG filed a Notice of Appeal and a brief in support, which asserted as the sole ground for reversal that the order allegedly violated 10 CFR
$ 50.33(g).
Mass AG Brief at 3-10.
On October 17, 1986, the Appeal Board issued an order summarily denying the stay application.
On October 31, 1986, the Appeal Board heard oral arguments from the parties and on November 20, 1986, the Appeal Board issued its Decision denying Mass AG's appeal.2 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-853, 24 NRC (November 20, 1986) (" Appeal Board Decision").
Mass AG now brings a petition before this Commission, seeking yet another opportunity to press its sole argument 2
On December 8, 1986, the Appeal Board issued its Decision disposing of issues raised by another party and affirming the Licensing Board's order of October 7, 1986.
Public Service of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC (December 8, 1986). -
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for reversal of the Licensing Board's Order, to wit, that the order allegedly violates 10 CFR $ 50.33(g).
The Applicants submit this answer in opposition to Mass AG's petition for further review.
ARGUMENT COMMISSION REVIEW SHOULD BE DENIED BECAUSE MASS AG DOES NOT RAISE ANY IMPORTANT QUESTION OF LAW OR POLICY The Commission should deny Mass AG's petition for review inasmuch as Mass AG has not raised an important question of law or policy for this Commission.to review.
As spelled out in the Commission's regulations regarding petitions for Commission review of decisions of an Atomic Safety and Licensing Appeal Board:
"A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the common defense and security, constitutes an important antitrust question, involves an important procedural issue, or otherwise raises important questions of public policy."
10 CFR $ 2.786(b)(4)(1) (emphasis added).
The issues in a case must meet the standard set forth in 10 CFR $ 2.786(b)(4) or the Commission's discretion to review the matter will not be exercised.
- See, e.g.,
Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 3 n.1 (1986).
The 4-
issue raised by Mass AG before the Licensing Board and the Appeal Board does not meet the standard in 10 CFR
$ 2.786(b)(4) and therefore the petition for review should be denied.
The sole issue raised by Mass AG is "whether 10 CFR 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."
Appeal Board Decision at 2.
The Appeal Board decided that 10 CFR
$ 50.33(g) cannot be construed as requiring that all emergency planning components of an application be submitted before issuance of a license to load fuel and conduct precriticality testing.
Id. at 7, 8,
12.
Even if the Appeal Board's construction of Section 50.33(g) were erroneous -- which it is not -- no important matter would be raised thereby.
As the Appeal Board observed:
"[N]o discernible public interest objective would be served by requiring the submission of state or local emergency plans as a condition of fuel loading or precriticality testing.
On brief, neither the Attorney General nor SAPL points to any such objective.
Indeed, at oral argument, both of them conceded that the applicants could easily remedy the perceived defect in the application simply by filing their own version of an offsite emergency plan for that portion of Massachusetts that falls within the EPZ."
Appeal Board Decision at 7 (footnote omitted).3 Thus, even if the Commission were to hold that Section 50.33(g) must be construed as requiring that all emergency planning components of-an application be submitted before issuance of any license, the difference to the proceedings in this case would be slight.
The Licensing Board's order authorizing the issuance of a license to load fuel and conduct precriticality testing might be vacated, but only until the Applicants filed some document entitled
" Massachusetts Emergency Plan."
The very filing of such a plan would cure any defect in the application and Applicants would be entitled at once to the reissuance of their license to load fuel and conduct precriticality testing.
The Appeal board's denial of Mass AG's appeal simply does not present an important issue of law or policy 8
The Appeal Board noted that a party other than Mass AG asserted that submission of a plan could provide some additional margin of safety.
The Appeal Board disagreed:
"[G]iven that the Commission's regulations do not require either the NRC Staff or FEMA even to look at the plans when they are submitted, we cannot accept the view that a legitimate purpose behind enforcement of the section 50.33(g) requirement at this stage is to enhance safety."
Appeal Board Decision at 8 (emphasis original).
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warranting review by'this Commission.
Mass AG's netition for such review should therefore be denied.'
Respectfully submitted,
$$ dLek Thomas G.
Dignan, Jr.
R. K. Gad III Kathryn A. Selleck j
Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Counsel for the Applicants l
I J
't*.
.8 In addition, it is to be noted that the decision
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appealed from was not final action by the Appeal Board
' on the Licensing Board action at issue. >
s
000'fiEr u^mVC CERTIFICATE OF SERVICE khgEC 22 P4:00 I, Kathryn A. Selleck, one of the attorneys fo Applicants'herein, hereby certify that on December 17, 1986, I made service of the within document by mailing copC6t j[gj.y ' A:
ies G
F thereof, postage prepaid, 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 Nuclear Regulatory Commission Washington, DC 20555 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, Esquire, Chairman Board of Selectmen Atomic Safety and Licensing Town Office Board Panel Atlantic Avenue U.S. Nuclear Regulatory North Hampton, NH 03862 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
y 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 RED 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairs.La 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 Exetor, 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 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 l
Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110 Kathryn A.
Selleck.....
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