Text

Atty General Jm Shannon Brief in Support of Reversal of Licensing Board Partial Initial Decision Authorizing Issuance of Low Power Ol.* Certificate of Svc Encl
	ML20215K924
Person / Time
Site:	Seabrook
Issue date:	05/06/1987
From:	Bronstein D; MASSACHUSETTS, COMMONWEALTH OF
To:	Edles G, Rosenthal A, Wilber H; NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
	CON-#287-3363 OL-1, NUDOCS 8705120037
	Download: ML20215K924 (41)
	v • d • e

in/f0 f".

n~

iM y

&f

$3h urCFR L

+

k

-DOCKETED i

USNRC UNITED' STATES"OF AMERICA

- 87 MAY -7 P4 :48

~ ~ '

' NUCLEAR REGULATORY COMMISSIONE cppa nr eq'.rf gry-ATOMIC SAFETY AND LICENSING APPEAL BOARD 00j:ifim ~., ' R ;LL t#,,

BEFORE ADMINISTRATIVE JUDGES:

Alan S. Rosenthal,-Chairman

. Gary J. Edles

.Howard A. Wilber

).

In the matter of

).

Docket Nos.

)

50-443-OL

- PUBLIC SERVICE COMPANY OF

)

50-444-OL-NEW HAMPSHIRE, et.al.

)

(On-Site EP)

- (Seabrook Station, Units 1 and 2)

')

-May 6, 1987

)

ATTORNEYLGENERAL' JAMES M. SHANNON'S BRIEF IN-

-SUPPORT OF REVERSAL OF LICENSING BOARD'S

PARTIAL INITIAL DECISION AUTHORIZING' ISSUANCE OF A LOW-POWER OPERATING LICENSE Attorney General James M.-Shannon files-this brief in support of reversal of the Licensing Board's-partial initial decision of March-25, 1987 authorizing issuance of a low-power 1

b i-

' operating license.

This brief addresses more extensively four

- of the issues on the merits of his appeal raised in Attorney General Shannon's Application for a Stay, filed April 6, 1

- 1987.1/

1/

The Attorney general does not here argue the merits of his

. claim that the Licensing Board erred in issuing its partial initial decision despite the failure of the applicants to 4

satisfy the. requirements of 10 C.F.R. S 50.33(g).

As the (footnote continued) 8705120037 B70506 PDR ADOCK 05000443 f) 9 PDR

+

4 -- v

,,e-,-+-+en..-.ewei-,,-,,-wew.m---,,,-.e, nw.mr%

- w '..e, w. w, v E em,

.mm--wm-,.m.,,ww.ww,,..

.emrw---mm--,,,y-py--e,-,--yy,ww

d The four claims on appeal addressed herein are:

(1) issuance of-a low-power operating license without preparation of a separate or supplemental environmental impact-statement addressing low-power operation violates the National Environmental Policy Act; (2) the Licensing Board erred in denying the Motion of Attorney General James M. Shannon To Reconsider Late-Filed Contention With Revised Basis And to Reopen The Record, dated March 3, 1987, which raised an important safety issue concerning the failure to comply with-the requirements of 10 C.F.R.

S 50.47(b)(5) and Part 50, App.

E, IV Dl, 3, due to the lack of adequate sirens in Merrimac, Massachusetts; (3) the Final Environmental Statement was deficient in its consideration of " Class 9" Accidents; and, (4) the Licensing Board erred in failing to allow waiver of 10 C.F.R.

S 50.47(d), which allows issuance of a low-power license (footnote continued)

Appeal Board is aware, that issue was determined by the commission on April 8, 1987 which decided that the Licensing Board had erred in authorizing issuance of a license for fuel loading and precriticality testing, as well as for low-power operation, because of the applicants' failure to file emergency plans for the six Massachusetts towns within the ten-mile emergency planning zone. -The Commission is currently considering whether the plans recently filed by the applicants, which are in fact nothing more than old draft plans prepared and rejected by the Commonwealth of Massachusetts (see Affidavit of David J.

Perrotti, attached to NRC Staff's Response to Applicants' " Suggestion of Mootness and Request for Vacation of Stay", filed May 1, 1987), satisfy 10 C.F.R.

S 50.33(g) and whether the stay previously imposed by the Commission should be kept in effect.

Depending on ti.e Commission's resolution of these issues, the Attorney General may seek to supplement this brief to address any issues concerning 10 C.F.R. S 50.33(g) left unresolved by the Commission or referred to the Appeal Board.

.o in advance of any determination of emergency planning issues.

I. PROCEDURAL BACKGROUND On June 17,-1986, the applicants filed their Motion for Issuance of Operating License Not In Excess of 5% Rated Power.

On July 2, 1986, the Attorney General filed his Answer to that Motion, objecting to issuance of a low-power operating license, and also filed a petition seeking waiver of 10 C.F.R.

S 50.47(d).

That answer raised several issues which are the subject of this appeal: the failure to prepare a supplemental environmental impact statement ("EIS" or "FES") concerning I

low-power operation; the improper dismissal by summary disposition of Seacoast Anti-Pollution League Contention 3, which challenged the adequacy of the EIS in its consideration of Class 9 accidents; the inadequacy of sirens in Merrimac, Massachusetts; and the impropriety both of failing to allow waiver of 10 C.F.R S 50.47(d) and allowing issuance of a low-power operating license in advance of hearings on emergency planning issues.

The Licensing Board rejected the Attorney General's arguments on July 25, 1986 and July 30, 1986 and denied reconsideration on September 15, 1986.

The hearings on all on-site safety contentions were completed in October 1986 and the parties filed proposed findings of fact and conclusions of law in November 1986. _ _.

r On January 12, 1987, the Attorney General filed a motion to admit a late-filed contention and to reopen the record.

The late-filed contention asserted that the applicants had failed to comply with 10'C.F.R. S 50.47(b)(5) and Part 50, Appendix E, IV, D1 and 3 because no administrative or physical means had been established to provide early notification and clear instruction to the populace within the plume exposure pathway located with the Town of Merrimac, Massachusetts.

Following the filing of responses in opposition to the Attorney General's motion by the applicants and staff, the Licensing Board denied the motion on February 6, 1987.

The Attorney General then filed a motion to reconsider the

' late-filed contention on March 3, 1987 raising the same contention but asserting a revised basis.

The applicants and staff opposed reconsideration and the Licensing Board denied the motion on March 25, 1987.

The Licensing Board issued its Partial Initial Decision on March 25, 1987.

The Licensing Board concluded that all on-site safety issues had been resolved to its satisfaction, with the exception of deficiencies found in the safety parameter display system, which it ordered corrected prior to full-power operation, and certain environmental qualification shortcomings.

To address the environmental qualification shortcomings, the Board required the filing of various materials prior to issuance of a low-power operating license.

r a

' The decision. authorizes issuance of an operating license for operation not in excess of five percent of rated power upon the filing of'these environmental qualification materials.

On April 6, 1987, Attorney General Shannon filed his Notice of Appeal, as.well'as an Application for a stay of Licensing

- Board Order Authorizing Issuance of Operating License to l

Conduct, Low-Power Operation.

l-II.

ARGUMENT A.-

Issuance of a Low-Power Operating License Without Prior-Preparation of a Separate or Supplemental Environmmentali l

Impact Statement Addressing-Low-Power Operation Violates l

the National Environmental Policy Act.

i Under the National Environmental Policy Act (NEPA), the Commission, like every federal agency, must prepare an environmental impact statement (EIS) before taking any major federal action which may significantly affect the quality of i

the human environment.

The Commission is obligated, under NEPA, to consider in its EIS:

(1) the impact of the proposed action on the environment; (2) any adverse environmental effects which cannot be avoided should the proposal be implemented'; (3) alternatives to the proposed action; and (4) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. S 4332(c).

Moreover, the agency is required to supplement the environmental impact statement if i

"the discovery of significant new information renders the original'EIS. inadequate."

San Luis Obispo Mothers for Peace v.

NRC, 751 F.2d 1287, 1298 (D.C. Cir. 1984).

See also 10 C.F.R.

S 51.92; 40 C.F.R.

S 1502.9(c)(1).

The staff's failure either to issue a separate EIS for low-power operation or to supplement its EIS to account for the increasingly likely possibility that no license for full-power operation will ever issue violates these fundamental NEPA requirements.

The agency has not taken the requisite "hard look".

Rather, it has allowed criticism of its decision to authorize low-power operation to be " swept under the rug".

Finally, it most certainly has breached its duty to supplement the EIS where significant new information has rendered-the original EIS inadequate.

The Commission's decision denying supplementation of the EIS for Shoreham is not to the contrary.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 21 NRC 1587 i

(1985).

The Commission in Shoreham placed considerable emphasis on the arguably equivocal stance adopted by Suffolk l

County which indicated that the county might well cooperate in i

emergency planning.

In the instant case, the commonwealth of Massachusetts and the six Massachusetts towns within the emergency planning zone have stated their refusal to participate cogently and consistently.

Moreover, the long l

delays in Shoreham full-power operation, with still no l

certainty that a license will ever be issued, combined with the now apparent difficulty faced by applicants in complying with l

i (

l l

a current emergency planning regulations, makes the likelihood that low-power operation at Seabrook will prove useless even greater than it was for Shoreham in 1985.

That the Shoreham litigation is distinguishable from Seabrook was recently emphasized in the Commission's review of ALAB-853.

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-02, NRC (April 9, 1987).

The Commission specifically drew an important distinction between Shoreham and Seabrook:

But the issue before us in Seabrook is distinguishable from Shoreham -- here we deal not with speculation as to the outcome of hearing litigation, but with the conclusions to be derived from the proposition that some of the materials that normally are essential to support a full power license under our regulations were missing.

Id.,

slip opinion, at 6.

Thus, the Commission recognized that where there is an apparent failure to satisfy regulatory requirements, and not merely uncertainties in litigation, low-power operation should not commence.2/

Here, the apparent regulatory failure arises from the applicants' and Commission's implicit concessions (through the waiver petition filed by the former and the rule change proposed by the,latter) that section 50.47(a) cannot be 2/

The Appeal Board recently noted that " formidable obstacles remain in the path" of licensure.

Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-864, NRC (May 1, 1987). -

satisfied by application of the current regulations.

Consequently, the probability of a full-power license being issued for Seabrook is qualitatively different and significantly smaller than it was at the time the Commission issued its Shoreham decision.

Therefore, this Appeal Board is not precluded from granting relief on this issue as a result.of the Shoreham decision.

3.

The N.R.C.

has violated the NEPA duty to consider reasonable alternatives to proposed action.

One of the most important obligations under NEPA is for the agency to consider " alternatives to the proposed action."

42 U.S.C.

S4332(C)(ii).

This requirement is "the linchpin of the entire impact statement."

Alaska v. Andrus, 580 F.2d 465, 474 (D.C. Cir.), vacated in part, 439 U.S. 922 (1978).

Indeed, it has been stressed that:

NEPA, requires that an agency must -- to the fullest extent possible under its other statutory obligations--consider alternatives to its actions which would' reduce environmental damage.

That principle establishes that consideration of environmental matters must be more than a pro forma ritual.

Clearly, it is pointless to " consider" environmental costs without also seriously considering action to avoid them.

Calvert Cliffs' Coordinating Comm.

v. AEC, {49 F. 2 d 1109, 1128 (D.C. Cir. 1971).

The environmental impact statement issued for Seabrook contains merely two paragraphs on " alternatives to the proposed action."

This section discusses only the issue of alternative energy sources and concludes that no analysis is necessary since that issue was addressed at the construction permit stage.

Thus, the only consideration as to alternatives is for the full-power operating license.

Low-power operation is nowhere discussed.

Most importantly, there is no consideration given to the alternative of postponing low-power operation until such time, if ever, that full-power operation is imminent or, at least, of greater likelihood than at present.

The Commission has previously stated that "the benefits of low-power operations clearly outweigh the environmental costs."

Long Island Lighting Co.,

(Shoreham Nuclear Power Station), CLI-85-12, 21 NRC 1587, 1590 (1985).

The Commission has identified three benefits of low-power testing:

(1) testing and evaluation of plant systems; (2) evaluation, assessment and familiarization with technical specifications and implementing procedures; and (3) operator and plant staff experience in the actual plant.

Id.,

at 1591.

However, the Commission has never stated how these benefits outweigh the costs of low-power operation (e.g.,

irradiation of the plant, accumulation of high level and low-level radioactive waste) in the situation, a distinct possibility here, where full-power operation is never authorized.

Moreover, the Commission has never explained'why the benefits of low-power operation are not achieved equally where low-power operation is postponed until full-power operation is more certain. _

The Commonwealth does not here argue that in every case the alternative otf postponing low-power operation must be considered.

Clearly, there have been many instances where at the time low-power operation was actually authorized, eventual full-power operation was assured and, in~ fact, followed swiftly.

But where, as here, full-power operation is many months, and perhaps years, away--and may well never occur--and where, as here, low-power testing is expected to last only four months (see Bridenbaugh Affidavit, 1 4), the staff is obligated to consider the alternative of postponing low-power operation and consequently to avoid the environmental costs which could be incurred unnecessarily.

B.

The Licensing Board Erred In Dismissing The Attorney General's Motion To Reconsider Late-Filed Contention With Revised Basis And To Reopen The Record.

As stated above, the Attorney General submitted a late-filed contention and motion to reopen the record on January 12, 1987.

That contention asserted that:

Applicants have failed to comply with the provisions of 10 C.F.R.

S 50.47(b)(5) and Part 50, Appendix E, IV D1 and 3,~because no administrative or physical means have been established to provide early notification and clear-instruction to the populace within the plume exposure pathway located within the Town of Merrimac, Massachusetts.

The basis for this late-filed contention was the assertion that, despite the applicants' claim that there would be three sirens operating in Merrimac, only two had been installed and neither was operational.

The Licensing Board denied the motion on February 6, 1987.

On March 3,-1987, the Attorney General moved for reconsideration and submitted the same late-filed contention.

However, because the applicants' response to the original motion to reopen had pointed out factual errors in the original basis, the Attorney General submitted a revised basis for the late-filed contention.

The revised basis was based upon facts asserted in the affidavit submitted by applicants in their response to the Attorney General's late-filed contention.

Specifically, the revised basis stated that the applicants' siren system fails to meet either of the alternative NRC/ FEMA sound level acceptance criteria for providing reasonable assurance that the populace will hear the sirens during an emergency in portions of Merrimac.

As regulatory basis, the Attorney General cited the general provision of 10 C.F.R.

S 50.47(b)(5) and Part 50, Appendix E, IV D1 and 3 and the specific sound level acceptance criteria set forth in NUREG-0654/ FEMA-REP-1, Revision 1, Appendix 3, SS C.3e and f, at pp. 10-11 and FEMA-REP-10, S E.6.2.1, S E.6.2.1 (Fixed Sirens).

These sound' level criteria require a showing that either:

(1) the expected sound level coverage is at least 60 dBC or (2) the expected sound pressure levels exceeds the average measured summer daytime ambient sound pressure levels by 10dB.

.m m

However, the Affidavit of James A. Mcdonald, dated January 22, 1987, submitted by applicants and, more particularly, the letter of applicants' consultant attached to that affidavit specifically acknowledged that the first criterion was not satisfied since sound pressure level in the disputed area was below'60 dBC.

As to the second alternative criterion, the revised basis contended that the applicants had erred in attempting to demonstrate that "the average measured summer daytime ambient 4

sound pressure levels" were at least 10dB below the 50-60 dBC levels of the sirens.

This error occurred because the applicants' consultant had taken the background measurements in the wrong octave band and on a non-representative day (Martin Luther King, Jr., Day, a state and federal holiday).

The Attorney General submitted an affidavit of an acoustics expert, Brion Koning, in support of the revised basis.

This affidavit demonstrated that background measurements taken on a more typical day and in the correct octave band established i

that the "10dB above background standard" was not met in at least three separate locations in Merrimac.

See Affidavit of Brion Koning, 1 6, attached to Motion of Attorney General James M. Shannon' To Reconsider Late-Filed Contention With Revised Basis And To Reopen The Record, dated March 3, 1987, 1

In response to the Attorney General's Motion to Reconsider, the applicants acknowledged that the sound level measurements

)

i

! i 1

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

had been taken in the wrong octave band.3/

The applicants also submitted another set of measurements from their consultant purportedly demonstrating that the "10dB above background standard" was satisfied in the disputed areas of Merrimac.

The Licensing Board concluded that the commonwealth had not satisfied the burden of satisfying the five factors for admission of a late-filed contention set forth in 10 C.F.R. 1 S 2.714(a)(1)A/ or the similar factors for reopening the 5/

record set forth in 10 C.F.R. S 2.734 In analyzing these 3/

Interestingly, the applicants stated that " incorrect Tnformation was given to the consultants, HMM Associates, as to the frequency of the sirens at issue."

Applicants' Answer to

~

Motion of Attorney General James M. Shannon to Reconsider Late-Filed Contention With Revised Basis And To Reopen The Record, at 2.

The Licensing Board should have questioned the l

competence of an expert relying on such information which that expert, which devised the system itself, should have known on its own to be incorrect.

~/

These factors are:

4 (1) good cause, if any, for failure to file on times (ii) the availability of other means whereby the petitioner's interest will be protected; 4

(iii) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (iv) the extent to which the petitioner's interest will be represented by existing parties; (v) the extent to which the petitioner's participation i

will broaden the issue or delay the proceeding.

5/

The relevant portions of section 2.734 provide:

(a) a motion to reopen a closed record to consider additional evidence will not be granted unless the following 1

(footnote continued) 4

1

factors, the Licensing Board concluded:

(1) that the commonwealth had-failed to establish good cause for failure to file timely; (2) that admission of the late-filed contention would delay the proceeding; (3) that there was no significant safety issue; and (4) that there would not be a materially different result if the record were reopened.

The Licensing Board erred in each of these conclusions.

First, as to the issue of timeliness, the Board confused consideration of the late-filed contention with the original basis (concerning the operability of the Merrimac sirens) with that raised in the Motion of Reconsideration, which set forth an entirely revised basis (concerning the failure to satisfy the NRC/PEMA sound level criteria).

Although the Attorney General disputes the reasoning of the Licensing Board concerning timeliness of the original late-filed contention, (footnote continued) criteria are satisfied:

(1) the motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) the motion must address a significant safety or environmental issues (3) the motion must demonstrate that a materially different result would be or could have been likely had the newly proferred evidence been considered initially.

3 (d) a motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the requirements for non-timely contentions in S 2.714(a)(1)(1-v).

21 -

that error is not at issue here.

Rather, the Board correctly noted that substitution of a completely new basis in the Motion for Reconsideration required it to " treat the instant motion as being one requesting leave to file an untimely contention and to reopen the record."

Memorandum and Order, dated March 25, 1987, at 3-4.

Nonetheless, the Board's analysis of timeliness is relevant only to the original basis and not at all to the revised basis.

The plain fact is that the Commonwealth could not have known prior to late January, when the applicants filed their response to the original late-failed contention, that the applicants were attempting to compensate for the lack of the third siren in Marrimac by demonstrating compliance with the "10dB above background" standard.

Indeed, the applicants failed to conduct any measurements to demonstrate compliance with that alternative standard until after the Attorney General had filed the original late-filed contention.

Thus, the error in applicants' consultant's calculations resulting from the taking of measurements in the wrong octave band and the unreliability of taking measurements on a sta:e and federal holiday were only discovered as a result of che applicants' filing.

Moreover, only through the NRC staff's response to the original contention did the Commonwealth learn of the inadequacy of the manner in which the NRC Senior Resident.

-J

Inspector for Seabrook had addressed the sound level criteria issue.

The Inspector in his affidavit attached to the NRC Staff Response to Massachusetts' Motion to Admit Late-Filed Contention admitted that he relied on the applicants' consultant's analysis to establish that the two Merrimac sirens "would" satisfy the "10dB above background standard" despite the fact that the consultant conceded that it took no background noise measurements.

Instead, the consultant concluded that two sirens would be adequate " based in large part upon our judgment that an ambient sound level survey would reveal" the appropriate levels but admitted that it "made no background noise measurements to confirm this."

Letter from HMM to James A. Mcdonald, dated July 7, 1986, attached to Applicants' Response to the original late-filed contention (emphasis added).

The late-filed contention could not have been filed prior to the. Attorney General learning, through the pleadings of the applicants and NRC staff, that both the applicants and staff were relying on errors and conjecture.

The Attorney General then proceeded swiftly to retain an accoustics expert, conduct appropriate measurements, and file his Motion To Reconsider, together with th'e revised basis.

As to the issue of delay in the proceedings, it should be apparent from the discussion above that in the circumstances of this case a short delay in low-power operation will not cause any delay in eventual (if ever) full-power operation., - -

Turning to the importance of the issue, the Commission has plainly stated that even for low-power operation review of offsite elements in the applicants' emergency plan is necessary, including compliance with section 50.47(b)(5)'s requirement of means to provide early notification and clear instruction to the populace within the plume exposure EPZ.

Statement of Consideration, 47 Fed. Reg. 30232, 30234 (July 13, 1982); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 790-91 (1983).

The Commission has properly concluded that these requirements must be met to " assure the public that, for i

low-power testing and fuel loading, adequate protective measures could and would be taken in the event of an accident."

Statement of Consideration, supra.

The Attorney General's late-filed contention raises the important question of whether such assurance is currently possible in portions of Merrimac.

Finally, as to the Licensing Board's conclusion that there would not be a materially different result if the record were reopened, it is apparent that the Board has merely accepted the factual assertions of the applicants' consultant while ignorning the co'ntrary findings of the Commonwealth's expert.

The two conflicting affidavits clearly demonstrate that there are material issues of fact in dispute.

It is wholly inappropriate -- and, indeed, reversible error -- for the -

Licensing Board cavalierly and summarily to reject one party's well-supported factual claims.

These factual issues can be resolved only through a hearing where both experts would be fully subject to examination and cross-examination concerning nethodology, analysis, and conclusions.

The Licensing Board demonstrated bias and clearly erred in precluding such a hearing.5/

C.

The Licensing Board Erred In Authorizing Issuance of A Low-Power Operating License Despite the Inadequacy of the Final Environmental Statement's Consideration Of Class 9 Accidents.

On May 11, 1983, the Licensing Board dismissed SAPL Supplement 3 which contended that the Final Environmental Statement (FES) for Seabrook was inadequate in its discussion of the most serious accidents, known as " Class 9" accidents.

Specifically, SAPL Supplement 3 stated:

The applicable requirements of the Commission's Interim Policy Statement issued June 13, 1980, 45 Fed. Reg. 40101 on Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 have not been met.

6/

The NRC staff, like the Board, merely accepted the applicants' measurements and brushed aside, without explanation, those of the Commonwealth's expert.

NRC Staff Response to Massachusetts Attorney General's Motion To Reopen Record and Reconsider Late-Filed Contention With Revised Basis, at 8.

This fact, in combination with the NRC Staff Inspector's failure to require background measurements rather than relying on the applicants' consultant's " judgment" of what those measurements "would" be, as noted above, seriously undermines the Licensing Board's unsupported conclusion that this safety issue can adequately be addressed in the future by the staff.

Memorandum and Opinion, dated ch 25, 1987, at 14, n.9.

sa This dismissal was erroneous because an examination of the FES As demonstrates that the analysis of Class 9 accidents did not meet the standards set forth in the Interim Policy Statement.

s

.The Interim Policy Statement plainly requires an analysis

(

and discussion of the environmental consequences of serious accidents.

In relevant portion that Statement provides:

It is the Commission's position that its Environmental Impact Statements shall include considerations of the site-specific environmental imoacts attributable to accident sequences that lead to radioactive materials, including sequences that can result in A

inadequate cooling of reactor fuel and to t

3

~<

melting of the reactor core.

In this regard, s

attention shall be given both to the probability 1

of occurrence of such releases and to the

["

/-

~)

environmental consequences of_such releases.

'.Q /

t 45 Fed. Reg. 4010, col. 2-3 (June 13, 1980).

.]-

Thus, the Reactor Safety Study and NRC experience with these cases has served to refocus attention on the need to reemphasize that environmental risk entails both probabilities and consequences, a point that was made in the publication of the Annex, but was not given adequate emphasis.

id_. at.40102, col. 3.

d

.It is the position of the commission that its

' Environmental Impact Statements, pursuant to Section 102(c)(1) >f the National Environmental Policy Act ofil969, shall include a reasoned consideration'of the environmental risks

-(impacts) attributable to accidents at the af' particular facility or facilities within the scope of each such statement.

)

The extent to which events arising from causes

{ h,1 external to the plant which are considered 1

y possible contributors to the risk associated

\\

t N

with the particular plant shall also be discussed.

The environmental consequences of releases whose probability of occurrence has been estimated shall also be discussed in probabilistic terms.

Such consequences shall be characterized in terms of potential radiological exposures to individuals, to population groups, and where applicable, to biota.

It is the intent of the Commission in issuing this Statement of Interim Policy that staff will initiate treatments of accident consideration, in accordance with the foregoing guidance, in its ongoing NEPA reviews, i.e.,

for any proceeding at a licensing stage where a Final Environmental Impact Statement has not yet been issued.

Id. at 40103, col. 1-2.

The Final Environmental Statement (FES) for Seabrook1/ is inadequate in its discussion of Class 9 accidents in several important respects.

First, the consequence analysis, set forth at page 5-34 of'the FES fails to make any estimate of consequences resulting from a major accident but depends entirely on an estimate of probabilities per reactor year.

This failure makes the requisite " reasoned consideration of the environmental risks (impacts) attributable to accidents" impossible.

Moreover, the FES contains no estimate of early fatalities in the event of a major accident where 7/

Since the Final. Environmental Statement for Seabrook was not issued until December, 1982, it is clear that the Interim Policy Statement is applicable. +e-Y t1

o-evacuation proved to be an unavailable mitigating factor.

The Commonwealth has consistently contended throughout this litigation that the unique siting characteristics of Seabrook make full and timely evacuation impossible, particularly in the event of a summer week-end accident.

Yet the staff fails to consider the possibility that evacuation may not be feasible and, consequently, fails to address one very real possibility which could result in many early fatalities.8/

The FES also fails to include any sensitivity analysis of latent cancers and early injuries.

Furthermore, the discussion in the FES of external factors which could cause a major accident is plainly insufficient.

As to one significant factor, sabotage, the staff notes that it is impossible to estimate.the risk.

FES, at 5-48.

However, it is not merely probabilities but the consequences themselves which must be analyzed according to the Interim Policy Statement.

Thus, the FES should discuss possible consequences of a sabotage in order to allow " reasoned consideration."

Each of these deficiencies, among others, was raised and argued in SAPL's Motion.for Summary Disposition.

See Seacoast Anti-Pollution League's Motion for Summary Disposition (Contention SAPL'Supp. III), dated February 11, 1983.

The i

Licensing Board erred in denying SAPL's motion and in granting

'the Applicants' Motion for Summary Disposition on this issue.

8/

For example, NUREG-0654 states that, for emergency planning purposes, it must be assumed that release of radiation could occur within one-half hour of an accident.

28 -

g' D.

.TheLLicensing Board Erred In Failing To Allow Waiver Of 10 C.F.R. S 50.47(d).

On the same date that the_ Commonwealth' responded in oppos'ition to the' applicants' motion for a partial initial decision authorizing low-power operation, the Commonwealth

. moved for waiver of 10 C.F.R. S 50.47(d).E/

See Petition of

~

Attorney General Francis X. Bellotti To Revoke. Regulation

'50.47(d)l3r In The Alternative To Suspend Its Application In-

'The Seabrook' Licensing Proceeding, dated July 2, 1986 The Licensing Board ~ denied waiver.

The failure to find that a prima facie showing for waiver had been established, pursuant to 10 C.F.R.

S 2.758, constituted reversible error.

~

,1/

Section 50'.47(d) allows' issuance of a low-power operating license prior to any hearing on emergency planning-issues:

Notwithstanding the requirements of paragraphs (a) and (b) of this section, no NRC or FEMA review,. findings, or~ determinations concerning the state of offsite emergency preparedness or the adequacy of and capability to implement State and local offsite emergency-plans are required. prior to issuance of an operating license authorizing.only fuel loading and/or low-power operations (up to 5% of the rated power).

Insofar as emergency planning and preparedness requirements are concerned, a

license authorizing fuel loading and/or L

low-power operation may be issued after a b

finding is.made by the NRC that the state of onsite emergency preparedness provides L

reasonable assurance that-adequate protective measures can and will be taken in the event of a radiological emergency.

The NRC will base this finding on'its assessment of the applicant's L

emergency plans against the pertintent standards l

in paragraph (b) of this section and Appendix E p

of this part, 10.C.F.R. 550.47(d). l-

[

i

. __ ~,

_., ~. -

i i

Section 2.758 provides, in relevant portion:

A party to an adjudicatory proceeding involving initial licensing subject to this subpart may petition that the application of a specified Commission rule or-regulation or any provision thereof, of the type described in paragraph (a) of this section,.be-waived or an exception made for the particular proceeding.

The sole ground for petition for waiver or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are such that' application of the rule or regulation (or proceeding are such that application of the rule or regulation (or provision thereof) would not serve the-purposes for which the rule or regulation was adopted.

The gravamen of the Attorney General's waiver petition was the allegation, at paragraph 11, that:

It is therefore Attorney General Bellotti's contention that Regulation 50.47(d) should be waived in'the instant case where there is no assurance that operation at full power will ever occur and if it does occur will not occur for nearly a year, or possibly years, and thus any possible benefits to be attained from commencing low-power testing at this time will be far outweighed by the significant and irreversible adverse consequences of such operation.

This claim was supported by factual assertions detailing the serious obstacles faced by the applicants in obtaining a full-power operating license.

In particular, the affidavit-of the Massachusetts Secretary of Public Safety established that no emergency response plans for Massachusetts had been submitted to FEMA or to the NRC; that, as of that date, five of the six Massachusetts communities had refused to participate in emergency planning;1S and that the Governor of Massachusetts 10/

The sixth community was considering non-participation and Eas since formalized its decision not to partcipate. -

had, to date, not submitted or indicated an intention to submit emergency plans and, _in fact, had ordered a halt to the planning process after the Chernobyl accident.

The serious, perhaps insuperable, obstacles faced by the applicants in obtaining full-power licensure should have been more'than sufficient to establish a prima facie case for waiver.

Certainly these facts demonstrated that there were "special circumstances with respect to the subject matter of the particular proceeding such that application of the rule or-regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted."

The purpose of allowing low-power operation to commence in advance of determination of emergency planning issues is to allow for the testing and evaluation of plant systems so that if a problem is discovered full-power operation-will not be delayed.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 21 N.R.C. 1587 (1985).

However, where as here, a full-power operation is at least one year away, if ever, the purpose of the rule is not served since low-power operation typically lasts only three or four months and lengthy delays between issuance of a-low-power licensure and a full-power licen'se require that certain tests be performed again.

See Bridenbaugh Affidavit, 1-4. l

P-Moreover, the experience with Shoreham, where a low-power

-license issued nearly two years ago and no full-power license is-in sight, highlights the appropriateness of waiver of section 50.47(d).

The Licensing Board's denial of waive ~r assures.that the irreversible consequences and irreparable harm resulting from low-power operation will occur unnecessarily despite the lessons learned from the Shoreham proceedings.

The Licensing Board also should have considered the patent invalidity of section 50.47(d) in evaluating the waiver request.11!

Quite simply, there is no statutory authority for the Commission's decision to postpone the hearings on vital issues

-- issues which may well compel denial of the full-power license -- until after the plant has been irradiated and irreparable environmental damage has occurred.

In fact, an examination of the Atomic Energy Act and its legislative history mandates the conclusion that.section 50.47(d) contravenes congressional intent.

Congress has consistently evidenced.a concern that all issues regarding health and safety be addressed prior to any operating license being issued.

Section 189(a) of the Atomic Energy Act, 42 6'.S.C. S 2239(a), makes no provision for the 11/

Although section 2.758(a) precludes a challenge to a commission regulation, the Board could have, and should have, considered arguments set forth by the intervenors concerning the invalidity of the regulation in deciding whether waiver was warranted.

issuance of any " low-power" operating license.

The Act speaks only of "an operating license" and clearly provides that a hearing must be held on request of any party prior to issuance of the " operating license."

such a hearing is currently on-going in this case and must be concluded prior to issuance of any operating license.

In 1972, Congress added section 192 which allowed the Commission to issue a " temporary operating license" prior to completion of the required hearings.

Most significantly, however, this authority expired on October 30, 1973.

42 U.S.C.

S2242(d).

Following the expiration of Section 192 in 1973, and continuing for the next ten years, the Commission had no authority to issue operating licenses in advance of completion of the hearings.. In 1983, Congress reenacted section 192 and rewrote'its provisions.

For the first time, Congress authorized the Commission to issue operating licenses for fuel loading and low-power operation before completion of the hearing.

That section provided, in part:

In any proceeding upon an application for an operating license for a utilization facility required to be licensed under section 2133 or 2134(b) qf this title, in which a hearing is otherwise required pursuant to section 2239(a) of this title, the applicant may petition the Commission for a temporary operating license for such facility authorizing fuel loading, testing, and operation at a specific power level to be determined by the Commission, pending final action by the commission on the application.

The initial petition for a temporary operating

~~

.e license for: each such facility, 'and any temporary operating--license' issued for such.

Lfacility based upon-the initial! petition, shall be limited to:: power.-levels not to exceed 5

percent ~of rated-full thermal power.

~

This provision explicitly authorized the. exact action taken

~by,the~ Licensing. Board here:

issuance of a low-power operating-license. prior-to'Jcompletion of the hearing required by section

'189(a).

There-is one significant catch, however:

the authority to.act' under'this new section~192 expired on December 31, 1983.

42.U.S.C.15 2242(e).. Clearly, then, Congress was-aware of the issuance of low-power licenses prior to completion oof the_fullihearing and-Congress. considered that practice permissible as a temporary, emergency measure.

However,

-Congress explicitly chose to authorize this practice only for a limited period, and that authorization ended in 1983.

-The Senate Report on the legislation which~became section 192 emphasized the temporary nature of the authorization. - The Commission had submitted proposed legislation providing for

. permanent authorization to issue low-power operating licenses prior to completion of the hearings.

The Senate Committee on L

-Environment-and Public Works amended the proposal to include the December 31, 1983 expiration.

According to the Committee's p_

report, "(t)his ' reflects the intent of the Committee that tisis provision is a-temporary and extraordinary remedy to an i.

extraordinary situation and should not set a precedent for

+

(

licensing decisions subsequent to its expiration."

r:

Senate E

I.

i' L l~

.~

+

.,,.~~;.-_..-.-....-,....,-,--,,.._._,,,-.,,.-n_,-

,,,-,,--,.-,-.n.,.,..,-

Report No.97-113, at 13.

1982 U.S. Cong. News and Admin. R.

3597.

Other than temporary authorizations provided by section 192, Congress has enacted only one exemption from section 189(a)'s requirement for completion for the hearing prior to any. licensing decision.

The "Sholly Amendment", passed in 1983 in response to the decision in Sholly vs. NRC, 651 F.2d 780 (D.C. Cir. 1980), vacated on other grounds, 495 U.S.

1194 (1983), allows the Commission to issue license amendments prior

-to a hearing "upon a determination that such amendment involves no significant-hazards consideration."12/

The legislative history of the Sholly Amendment demonstrates that Congress was especially concerned with the denial of a prior hearing for license amendments with

" irreversible consequences."

As Representative Ottinger noted in floor debate:

Once a license amendment with irreversible consequences has received the Commission's approval and has gone into effect, as a practical matter it will be impossible to correct any errors that may have entered into the Commission's decision.

Therefore, we believe that the Commission has an obligation, when assessing the health and safety considerations of amendments having irreversible

~

12/

Quite clear 1y, since the instant proceeding concerns Tssuance of an operating license and not a license amendment, the Sholly Amendment is not directly applicable.

Nonetheless, the legislative history of the Sholly Amendment illuminates the congressional intent to require in general the completion of hearings prior to licensing decisions. t.

a D

consequences, to insure that only those.

amendments that very clearly raise no significant hazards issues will be allowed to take effect before the required hearings can be held.

128 cong. Rec. 8823 (December 2, 1982).

The "no significant hazards consideration" exemption pertains only to license amendments.

On the other hand, low-power operation most definitely does involve " irreversible consequences."

The congressional intent in section 189(a) was that no operating license issue until the hearing is completed on all health and safety issues, including emergency planning-issues.

Nor can it be argued that the emergency planning issues need not be heard until after low-power operation begins since low-power operation cannot result in a radiological emergency requiring emergency preparedness.

The fact that on-site safety issues may have been resolved prior to low-power operation does not excuse the failure to consider off-site emergency issues.

The commonwealth, and the other interested parties in these N.R.C. proceedings, should not have to suffer the irreparable harm of acccumulation of high level radioactive waste and irradiation of the plant prior to resolution of the important-issues which arr likely to result in a decision not to allow full-power ooeration.

Moreover, even in amending section 192 as an emergency measure, now expired, to allow issuance of temporary operating -

l'3

-licenses for low-power operation prior to completion of the hearings, Congress nonetheless insisted that there have been filed "a State, local, or utility emergency preparedness plan for the facility."

42 U.S.C.

S2242.

If in general there were no requirements for consideration of emergency planning issues prior to low-power operation, Congress would not have required the filing of emergency plans as a minimum prerequisite for that emergency provision.

The Licensing Board's cursory denial of waiver was unsupported.

This Appeal Board should, therefore, find that a i

prima facie showing to support Waiver was demonstrated and I

should refer the-issue of waiver of section 50.47(d) to the Commission for determination.

CONCLUSION For the foregoing reasons, the Appeal Board should reverse the March 25, 1987 partial initial decision authorizing the issuance of a low-power license.

Respectfully submitted, JAMES M. SHANNON Attorney General By:

4 Donald S.

Bronstein Carol S. Sneider Allan R. Fierce Assistant Attorneys General Environmental Protection Division Department of the Attorney General One Ashburton Place, Room 1902 Boston, MA 02108 (617) 727-2265 Dated:

May 6, 1987 37 -

l' o-00LKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

_37 tmY -7 P.4 ~48

)

0FFICE 0; IUMM/-[

In the' Matter of 00CKETg{kCE PUBLIC SERVICE COMPANY OF NEW

)

Docket No.(s) 50-443/444-OL HAMPSHIRE, ET.AL.

)

(Seabrook Station, Units 1 and 2)

)

CERTIFICATE OF SERVICE I, Donald S..Bronstein, hereby certify.that on May 6, 1987 I made service of the'within document, by mailing copies thereof, postage prepaid, by first class mail, or as indicated by an asterisk, by Federal Express mail, to:

Helen F. Hoyt, Chairperson Gustave A. Linenberger, Jr.

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building.

East West Towers-Building 4350 East West Highway 4350 East West Highway Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814 Dr. Jerry Harbour

Sherwin E. Turk, Esq.

Atomic Safety & Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission East West Towers Building Tenth Floor 4350 East West Highway 7735 Old Georgetown Road Third Floor Mailroom 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 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

'l i

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 Ms. 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 Washington, DC 20555 Manchester, NH 03106 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 Ms. Sandra Gavutis, Chairperson Mr. 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 Mr. Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510-25 High Road (Attn: Tom Burack)

Newbury, MA 10950 Senator Gordon J. Humphrey Mr. Peter J. Matthews 1 Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton)

Newburyport, MA 01950 Mr. Donald E.

Chick Mr. William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 i,

s.

'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 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 ExeterL Jewell Street, RFD 2

'10 Front Street

-South Hampton, NH 03827 Exeter,13H 03833 Robert Carrigg, Chairman Mrs. 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 Sheldon J. Wolfe, Chairperson ~

Allen Lampert.

Atomic Safety-and Licensing Civil-Defense Director Town of Brentwood Board Panel 20 Franklin Street U.S. Nuclear' Regulatory Commission Exeter, NH 03833 Washington, DCL 20555 Dr. Emmeth A. Luebke Charles P. Graham,.Esq.

Atomic Safety & Licensing Board McKay, Murphy & Graham U.S. Nuclear Regulatory Old Post Office Square Commission 100 Main Street East West Towers Building Amesbury, MA 01913 4350 East West Highway Third Floor Mailroom 3

Third Floor Mailroom Bethesda, MD - 20814

.Bethesda,-MD-20814 b

- Judith H. Mizner, Esq.

Silvergate, Gertner, Baker, Fine, Good & Mizner 88 Broad Street Boston, MA 02110 ;

a

i l

e Rep. Edward J.

Markey, Chairman

Alan S. Rosenthal, Chairman U.S. House of Representatives Atomic Safety & Licensing Subcommittee on Energy.

Appeal Board Conservation and Power U.S. Nuclear Regulatory Commission Room H2-316 East West Towers Building House Office Building Third Floor Mailroom Annex No. 2 4350 East West Highway Washington, DC 20515 Bethesda, MD 20814 Attn:

Linda Correia

Gary J. Edles

Howard A. Wilber Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S.' Nuclear Regulatory U.S. Nuclear Regulatory Commission 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

. o (,1_

?*kt~

2 Donald S. Bronstein Assistant Attorney General Department of the Attorney General One Ashburton Place, Room 1902 Boston, MA 02108 (617) 727-2265 Dated:- May 6, 1987 L

ML20215K924

Text

Navigation menu

Search