ML20215M032
| ML20215M032 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/08/1987 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | HAMPTON, NH, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#287-3419 ALAB-865, LBP-87-10, OL-1, NUDOCS 8705130068 | |
| Download: ML20215M032 (32) | |
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MR 00CMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g g jj gj g ATOMIC SAFETY AND LICENSING APPEAL BOARD OFFICE (~ Eu - iM: (
Administrative Judges: 00CKETK .'. M RE:
BRANCH 4
Alan S. Rosenthal, Chairman ~ May 8, 1987 Gary J. Edles (ALAB-865)
Howard A. Wilber -
SERVfD MAY 111907
)
In the Matter of )
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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al. ) 50-444-OL-1
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(Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Issues)
)
Diane Curran, Washington, D.C. (with whom Andrea Ferster and Ellyn R. Weiss,. Washington, D.C., were on the brief) for the New England Coalition on Nuclear Pollution.
Paul McEachern, Portsmouth, New Hampshire (with whom bbtthew T. Brock, Portsmouth, New Hampshire, was on the brief) for the Town of Hampton, New Hampshire.
Robert A. Backus, Manchester, New Hampshire, for the l Seacoast Anti-Pollution League.
Donald S. Bronstein, Boston, Massachusetts (with whom l Carol S. Sneider, Boston Massachusetts, was on the l brief) for Massachusetts Attorney General James M. Shannon.
l Thomas A. Dignan, Boston, Massachusetts (with whom George H. Lewald and Kathryn A. Selleck, Boston, l Massachusetts, were on the brief) for the Public l Service Company of New Hampshire, et al.
i Sherwin E. Turk for the Nuclear Regulatory Commission staff.
United States Senator Gordon J. Humphrey of New Hampshire, Washington, D.C., filed a brief amicus curiae pro se.
8705130068 870508 PDR ADOCK 05000443 G pop gp i -. - . -
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MEMORANDUM AND ORDER The New England Coalition on Nuclearlollution (the Coalition), the Town of Hampton, New Hampshire, the Seacoast Anti-Pollution League (SAPL), and Massachusetts Attorney General James M. Shannon each seek a stay pendente lite of the Licensing Board's March 25, 1987 partial initial 1
decision authorizing the issuance of a license for low-power operation (up to five percent of rated power) of the Seabrook nuclear facility.2 United States Senator Gordon J. Humphrey of New Hampshire (the state within which the facility is located) has submitted a brief amicus curiae in support of the~ requests for-a-stay. The applicants 1
LBP-87-10, 25 NRC .
2 SAPL, the Attorney General, and the Town of Hampton seek a stay only pending resolution of issues they plan to raise on appeal of LBP-87-10. The Coalition asks us to stay the Licensing Board's decision until the Commission has reached a determination as well on the application for a full-power license. Motion for Stay on Behalf of the Seacoast Anti-Pollution League (April 8, 1987) [hereaf ter
- SAPL Stay Motion]; Attorney General James M. Shannon's I
Application for a Stay of Licensing Board's Order (April 6, 1987) [hereaf ter Attorney General's Motion for Stay]; Town of Hampton Notice of Appeal and Application for a Stay (April 8,'1987); and New England Coalition on Nuclear Pollution's Motion for a Stay of a Low Power Operation Pending Full Power Decision or Appellate Review (April 8, 1987) [hereaf ter Coalition's Motion for Stay]. In a document dated May 5, 1987, and received by us on May 7, the Town of Hampton seemingly modified its stay request to embrace the relief sought by the Coalition.
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Public Service Company of New Hampshire, et al. and the o _
Nuclear. Regulatory Commission-staff oppose the motions.
As f
explaine'd.below,.we deny all stay _ applications.
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I.
< - As we' recently had$ occasion to observe, this operating .
license proceeding has been in litigation-since 1981.3 Although the State.of New Hampshire has tendered a J
radiological emergency response plan for that portion of the v
ten-mile ~ plume exposure pathway emergency planning zone (EPZ) that falls within_its borders, the Commonwealth of Massachusetts has declined to submit a plan covering its
-portion of the zone or otherwise to cooperate in emergency T'
planning matters. The effect of that refusal was thef .
subject of earlier appeals by SAPL and the Attorney General.
\
Late last year, they sought reversal of the Licensing Board's October 7, 1986 memorandum and' order authorizing the f
issuance of an operating license allowing fuel loading and precriticality testing at Seabrook. The Attorney General argued that the Commission's regulations require the i
submission of an emergency response plan for the entire EPZ before any license may be issued. SAPL joined in that 4
3 See ALAB-864, 25 NRC (May 1, 1987) (slip opinion at 7).
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- argument but raised other issues as well. In ALAB-853 and ALAB-854, we rejected those assertions.5 In particular, we found, in ALAB-853, that an applicant need not submit an offsite emergency response plan as a condition precedent to issuance of'a license authorizing fuel _ loading and precriticality_ testing.
In an unpublished order issued on January 9, 1987, the Commission announced its intention to review ALAB-853. It decided to consider whether the applicants must submit a governmental or utility radiological emergency plan before issuance of any operating license, including one limited to fuel loading or low-power operation. The Commission did not alter the schedule:for. fuel loading.or precriticality testing. -But, anticipating that the Licensing Bourd was about to issue a decision addressing the applicants' request f
for issuance of a low-power license, the Commission stayed the authority of the Director of Nuclear Reactor Regulation to issue such license until its review was completed.
In an opinion issued on April 9, 1987, the Commission decided that special policy considerations favored requiring the filing of a state, local, or utility plan for Seabrook 5
ALAB-853, 24 NRC (November 20, 1986); ALAB-854, 24 NRC (December 8, ITI6).
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before any license could be issued.6 Shortly before the announcement of the Commission's decision, however, the utility filed its own offsite emergency plan for that ,
portion of the EPZ located in Massachusetts. It also filed a motion suggesting that the issues before the Commission were now moot and urging that the stay be lifted. In the 3 circumstances, the Commission is now considering whether the filing of that plan satisfies the requirement imposed in its April 9 decision. Until it reaches a decision on that issue, its stay remains in effect.7 II.
Consideration of stay applications requires us to apply
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the traditional stay criteria enunciated by the courts'and incorporated into the Commission's regulations.8 Those 6
CLI-87-2, 25 NRC .
7 The Attorney General urges us to defer ruling on his stay petition until the Commission lifts the stay now in effect (assuming it does so) or, in the event we conclude that a stay is not warranted, to delay the effect of our ruling to permit the filing of a stay request with the Commission or the court. We eschew either course but issue our decision promptly in order to accord parties an opportunity to seek further relief from the Commission. Our action is intended to permit the Commission to review any additional stay applications at the same time it considers the issues already pending before-it.
8 See 10 CFR 2.788 (e) . See generally Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1),
CLI-86-4, 23 NRC 113, 121-22 (1986) (citing Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir.
(Footnote Continued)
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criteria are (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. None of these factors is necessarily dispositive, but the potential for irreparable injury and the likelihood that a movant will prevail on the merits generally get primary attention. Moreover, the strength of a movant's showing on one of these factors determines how strong the showing must be on other factors to justify a stay.9 When reviewing requests to stay licensing board decisions authorizing only low-power operation, we do not write on a clean slate. The Commission, this Board, and the courts have evaluated issues bearing on the four stay -
criteria in connection with similar proceedings, particularly the Shoreham litigation.10 In that case, as here, intervenors argued that a stay was proper to preserve I
- (Footnote Continued) 1958), and Washington Metropolitan Area Transit Comm'n v.
Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977)).
Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985).
10 See e.g., ibid; Long Island Lighting Co. (Shoreham l Nuclear Power Station), CLI-85-12, 21 NRC 1587 (1985); -id.,
CLI-85-1, 21 NRC 275 (1985); id., CLI-84-9, 19 NRC 1323 ~ -
(1984); id., CLI-83-17, 17 NRC 1032 (1983); and ALAB-810, 21 NRC 1616 T1985).
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7 the status quo until appellate review could be completed because there was a possibility that full-power operations would never be authorized or conducted. That argument was rejected.
The Massachusetts Attorney General presses the point that this case can be distinguished from Shoreham.11 In particular, he asserts that the degree or uncertainty that Seabrook will ever operate is greater than at Shoreham. He notes that it is two years since the stay decisions were made in the Shoreham litigation, and it seems no more likely today that either Shoreham or Seabrook will eventually =
receive a full-power license. But the gist of the Shoreham opinions is that, assuming there are no other impediments, low-power operation should be authorized unless the uncertainties surrounding offsite emergency planning make it relatively clear that full-power operation will never be authorized. In explaining an earlier Shoreham decision, the Commission recently indicated in this proceeding that
[it] did not discount the possibility that a license for fuel loading and low-power testing could be held up if it were established, beyond significant doubt, that there were truly insuperable obstacles to issuance of a license for 11 See App. Tr. 14-20, 25,98-102.
8 operation at any substantial power level.12 That high level of certainty - "beyond significant doubt" that there are "truly insuperable barriers" -- concerning Seabrook's eventual operation is simply not present on the facts before us. In our view, assessing any differences in the likelihood of full-power operation in the context of the g current Seabrook litigation as compared with the Shoreham case of two years ago is simply a guessing game and not decisionally relevant.
III. [
A. Irreparable Harm The Commission has observed that the most significant factor in deciding whether to grant a stay request is whether irreparable injury will result in the absence of a stay.14 As a consequence, we often turn first to that -
12 CLI-87-2, 25 NRC at (slip opinion at 6).
13 The court in the Shoreham litigation characterized the likelihood of full-power operation at Shoreham as "a matter for speculation." Cuomo, 772 F.2d at 977. We believe the same can be said for Seabrook. Counsel for the applicants, in fact, argues that Seabrook is a somewhat more promising candidate for licensure. Among other things, unlike Shoreham, Seabrook is located within a state which has filed an offsite emergency plan and is, to some extent at least, cooperating with the applicants. The opposition from governmental parties comes largely, although not exclusively, from neighboring Massachusetts. App. Tr.
65-69.
14 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984).
9-question. The movants assert--that a varietyfof injuries will? result from low-power testing. They observe,Efor-example, that there-is the potential for harm.to the public; in the event of an-accident during low-power testing.
However, the Commission-has found that certain factors contribute to a " substantial reduction in risk and potential ~
accident' consequences for low-power. testing as compared to the: higher risks in continuous full-power operation."16.
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'First, the fission product inventory generated during low-power testing is much less than during full-power operation.
Moreover, thereHis a reduction in the required capacity of systems designated to mitigate any consequences of an abnormal occurrence when a reactor operates at low power.
Finally, there.is more. time available to take actions to identify accident causes and to mitigate accident 17 consequences. Even the movants acknowledge that the potential for an accident with serious consequences 15 See Cleveland Electric Illuminating Co. (Perry Nuclear Power. Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 (1985); United States Dep't of Energy (Clinch River Breeder Reactor Plant), ALAB-721, 17 NRC 539, 543 (1983).
16 46 Fed. Reg. 61,132 (1981).
17 Id. at 61,132-33. See also 47 Fed. Reg. 30,232-33 (1982).
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during low-power operation is considered extremely small.18 Simply, stated, the-risk of. harm to the general public-or the Jenvironment flowing from an accident during inw-power testing is insufficient to' constitute irreparable injury.
The intervenors point to other. forms of injury that allegedly will also result if a stay:is'not granted. Among 0 other things, they claim that irradiation of the. reactor will result in a change in the status quo, that they will effectiv ly lose their appellate rights if the reactor is.
allowed to operate before their claims are fully considered on appeal, and that workers may be exposed to radiation during testing. These assertions were expressly evaluated by the court in the Shoreham litigation and either rejected or-found insufficient to justify grant of a stay. We have considered them in the context of this case and can find no basis on which to distinguish the arguments from those resolved in the Shoreham proceeding.
The movants assert that one argument they now present was not explicitly raised in the Shoreham litigation --
i.e., that the critical transition from fuel loading to low-power operation contaminates much of the plant and 18 See Coalition Motion for Stay at 9 n.11 (the risk of an accident exists, although the Commission considers it
" insignificant"); SAPL Stay Motion at 6 (" nuclear operation presents the risk of an accident, however remote").
-4 11 u-reduces the range of options available to the utility for use of the facility in the event full-power operation is eventually precluded. Among other things, the salvage value of th'e fuel and plant' component parts is reduced and arrangements will need to be made'for the storage of the irradiated fuel.19 In Shoreham, however, the Commission weighed the environmental effects of low-power testing, including, expressly, " moderate irradiation of the core and contamination of the remainder of the primary coolant system."20 One might reasonably infer from this that.the Commission was aware of -- although it did not expressly discuss -- both the reduction in salvage value and the need to store irradiate'd: fuel. -
1 In any event, these -drawbacks are largely economic.
The courts 'and the Commission have long held that economic
l effects'are not generally sufficient to establish irreparable injury.21 To be sure, some economic costs could 19 The Attorney General "primarily relie[s]" on this argument in support of his claim of irreparable injury.
App. Tr. 98-99.
20 CLI-85-12, 21 NRC at 1590.
l 21 See Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 625 (1977)
(quoting Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d
~ at 925) ("[m]ere injuries, however substantial, in terms of money, time and energy expended in the absence of a stay, are not enough").
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12-6 eventually be borne by the ratepayers, but that is far from certain. An allocation of burdens in the event that the Seabrook plant is unable to operate at full power will be meted out in due course by the state agencies with responsibility in this area.22 Thus, any economic injury that may result generally to ratepayers, including the intervenors, is in no sense irreparable.
We fully appreciate that the storage of the waste generated by low-power operation is not entirely a matter of.
economics. There are potential safety and environmental consequences that might not result if low-power testing were simply foreclosed at this juncture. But the problem of waste disposal is generic to nuclear power. plant operation-and is being addressed on a nationwide basis.23 While we cannot entirely discount the possibility that some
. radioactive waste may have to be stored at the Seabrook site, the movants have not shown that waste generated during low-power testing at Seabrook must inevitably be housed there indefinitely or that, if so housed, it would pose serious health or safety problems to the facility's neighbors.
22 See generally Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1447 (1984) (citing Public Service Co. of New Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975 (1984)).
23 See Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983).
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13 The Attorney General concedes that the waste storage problem will be small but argues that irreparable injury occurs because there is no justification for any contamination of the plant and the consequent need for waste
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storage, given the uncertainty that ceabrook will ever be licensed.24 In Shoreham, however, the Commission rejected the notion that no changes in the environmental status quo should be permitted simply because there is uncertainty as to whether a full-power license will ever be issued.25 Similarly, the court acknowledged that low-power testing represents "an irreversible change from the status quo," but nonetheless declined to conclude that the significance of the change amounted to irreparable harm.26 In our view, the question of whether waste storage rises to the level of irreparable injury is properly resolved on the basis- of - -
these earlier Commission and court decisions. Given those decisions, we cannot conclude that the contamination of the plant and the possibility that waste may need to be stored at Seabrook constitute irreparable injury.
24 App. Tr. 100.
26 Cuomo, 772 F.2d at 976.
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- B. Likelihood of Success.on the Merits Because the'movants have been unable to demonstrate-that they will-be irreparably harmed if the stay is denied, they bearLa heavy burden of. showing that they are likely to
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succeed on the'marits of their appeal. As the U.S. Court of 4 -
. Appeals for the District of Columbia circuit has explained:
y To justify the granting of a stay, a movant need
! not always establish a high probability of success on-the merits. Probability of. success is inversely' proportional.to the degree of
- irreparable injury evidenced.- A stay may be.
grantedwitheitherahighprobggilityofsuccess and some injury, or vice versa. I
- The movants here have not met that burden.
A number.of the legal arguments advanced in support of the stay request have already been. addressed'and rejected-in' r the Shoreham proceeding or earlier phases of this case. As an example,'the Attorney General and the Coalition assert
, that the Licensing ~ Board erred in failing to require the j . preparation of a supplemental environmental impact statement
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to assess the costs and benefits of low-power testing where it appears that no full-power license may issue.28 The 4
i-Id., at 974.
O SAPL joins in arguments presented by the Attorney General. See SAPL Stay Motion at 2.
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'15 Commission and.the court expressly rejected this claim in the Shoreham proceeding.29 The Attorney General and the Coalition also argue that issuance of a low-power license pursuant to 10 CFR 50.47 (d) and 50.57 (c) prior to resolution of offsite. emergency planning issues deprives them of their right to a hearing under section 189(a) of the Atomic Energy Act. But Section
- 50. 47 (d) gives applicants an unqualified right to a low-power license if certain prerequisites are met even if the Commission has yet to resolve all offsite emergency planning issues.30 To the extent that the movants believe that the Commission's regulations themselves violate the hearing requirements of the Atomic Energy Act, they must raise that issue with the Commission; the regulations are not subject to challenge before us.31 29 CLI-85-12, 21 NRC at 1589; CLI-84-9, 19 NRC at 1326; Cuomo, 772 F.2d at 974-76.
30 CLI-85-1, 21 NRC at 278. Cf. ALAB-854, 24 NRC at (slip opinion at 11-13), where we approved the issuance of a license authorizing fuel loading and precriticality testing despite the pendency of full-power issues.
31 10 CFR 2.758 (a); Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 464 (1982). See also American Nuclear Corp., CLI-86-23, 24 NRC
, (November 17, 1986) (slip opinion at 5). The Coalition claims that the requirement in section 50.47 (d) of a finding concerning certain aspects of offsite emergency planning has not been satisfied. As we explained in ALAB-854, however, all necessary requirements in this regard (Footnote Continued)
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The Attorney. General-and the Coalition also maintain
, that a low-power license cannotLbe issued until offsite emergency plans.have been submitted for'the Massachusetts portion'of the EPZ in accordance with 10 CFR 50.33(g). As noted at the outset of this opinion, we concluded in ALAB-853'that.section 50.33(g) does not impose any such requirement. Although the Commission did not reject our legal analysis and construction of the regulations, it nevertheless decided that special policy considerations, "which ultimately (the Commission) alone should decide,"
warrant the filing of a state, local or utility plan before issuance of any operating license for the Seabrook reactor.32 The applicants have tendered a utility offsite-emergency plan and the Commission is now actively considering whether its policy requirements have been satisfied. This matter, therefore, now rests exclusively in the Commission's hands.
certain arguments advanced in support of the stay requests have not been the subject of earlier deter-L minations. But we find them unavailing as well. First, the Attorney General claims that the Licensing Board improperly I
(Footnote Continued) have been fulfilled. See 24 NRC at (slip opinion at
- 11-14).
j 32 CLI-87-2, 25 NRC at (slip opinion at 6).
m 17 granted the applicants' motion for summary disposition of SAPL Contention 3, which claimed that the requirements of the Commission's Policy Statement on the consideration of accidents under the National Environmental Policy Act of 1969 have not been met. Specifically,-he asserts:
The [ environmental impact statement] for Seabrook did not include any analysis of consequences of a
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Class 9 accident; did not consider site-specific $
data; included no discussion of external events, such as sabotage, which could affect the ris anddidnotquantifytheuncertaintybounds.g; We find no support for the Attorney General's attack on the
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staff's analysis. Contrary to his assertion, the environmental statement does contain a lengthy evaluation of severe, or so-called Class 9, accidents.34 That evaluation includes an examination of site-specific data,35 makes reference to external events and explains why they are not separate _j analyzed,36 and makes an effort to quantify analytical uncertainties.37 As a consequence, we are satisfied that the Attorney General is not likely to succeed See Attorney General's Motion for Stay at 6.
See NUREG-0895, Final Environmental Statement Related to the Operation of Seabrook Station, Units 1 and 2 (December 1982) at 5-47 to 5-71.
35 . at 5-43, 5-44.
36 Id. at 5-48.
37 . at 5-70, 5-71.
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9 18 with his claim that the staff failed to include an analysis of Class 9 issues. No take no position on the adequacy of the staff's analysis or the overall propriety of the Licensing Board's summary disposition determination --
matters not pressed by the Attorney General at this stage of the litigation.
The Attorney General next argues that the Licensing Board improperly rejected two late-filed contentions concerning the adequacy of siren sound levels in certain portions of the EPZ. The Board first refused to admit a contention that only two sirens, rather than three, had been installed in the-Town of Merrimac, Massachusetts, and that the two sirens were not operational.38 The Board then declined to entertain a contention alleging that a test of
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sirens in the Town of East Kingston, New Hampshire, called into question the reliability of the siren system.39 Finally, it rejected a second effort by the Attorney General to introduce the Merrimac contention, this time to show that the sirens did not comply with applicable regulations.40 In reaching its conclusion on both contentions, the Licensing 38 LBP-87-3, 25 NRC 3
(February 6, 1987).
39
- Licensing Board March 23, 1987 Memorandum and Order (unpublished).
40 Licensing Board March 25, 1987 Memorandum and Order (unpublished).
19 Board evaluated the three criteria for reopening a record set out in 10 CFR 2.734 and balanced the five factors contained in 10 CFR 2.714 (a) against which late contentions
-must be measured. To convince us that he is likely to
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prevail on the merits, the Attorney General must persuasively demonstrate that both the Board's decision not to reopen the record and its determination not to admit the {
late-filed contentions were wrong. We do not believe that he has done so.
To prevail on a motion to reopen the record a movant
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must show that (i) its motion is timely, although an exceptionally grave issue may be considered in the discretion of the presiding officer even if not timely ,
presented; (ii) the motion addresses-a significant safety or environmental issue; and (iii) a materially different result would be or would have been likely had the newly proffered evidence been considered.41 Insofar as the East Kingston sirens are concerned, the Board concluded that the motion was timely filed but that the movant had not shown that a significant safety issue was involved. Although the motion alleged that the East Kingston sirens did not perform as expected, the Board (relying on an affidavit submitted by the NRC staff) concluded that the " test" of the sirens did 41 51 Fed. Reg. 19,535, 19,539 (1986).
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20 i-not conform to the approved Seabrook test procedure (among ,
other things,-the sirens were activated for:only 15, rather than 30, seconds and thus-did not complete a' full rotation).
As a consequence, the Board was unprepared to rely on the- ,
' test as a demonstration that a significant safety issue was present so as to warrant a reopening of the record. The Board went on to note that the NRC staff gave assurances that the sirens would be retested in accordance with proper-procedure and any needed corrections would be made. In the circumstances, the Attorney General has failed to show that he is likely to prevail on the merits of his claim that the Board acted unreasonably in declining to reopen the record.
j Insofar as the Morrimac sirens:are concerned, the Board found, first of all, that the Attorney General had not i demonstrated good cause for failing to' raise the matter in a timely manner. In the Board's view, the Commonwealth should j have been aware for more than six months that the Town of
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Merrimac had refused to permit the electric connection of the sirens and had ordered the immediate cessation of all work on the sirens.42 Equally important, the Board (again relying on a staff affidavit) indicated that two of the
, three sirens would be equipped with batteries and that those sirens can produce noise levels sufficient to meet or exceed
. 42 LBP-87-3, 25 NRC at (slip opinion at 4).
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21 standards accepted by the NRC and the Federal Emergency Management Agency. (FEMA) . The Board thus found that no significant safety issue'had'been raised.43 The Attorney General thereafter resubmitted his request to reopen the record and late-file the same Merrimac siren contention, this time asserting as its basis that the sound levels produced by the sirens did not satisfy NRC/ FEMA standards (the Attorney General apparently abandoned the earlier. bases for his late-filed contention). The Board again found that the request was not timely submitted. In this regard, it rejected the assertion that the Commonwealth was " lulled into inaction" because the applicants had installed two sirens and publicly announced that-they would -
be operational before initial criticality.44 After reviewing various arguments and affidavits, the Board also found that the siren design coverage in the Merrimac area met NRC/ FEMA requirements.
The Attorney General objects that, in reaching its decision, the Board improperly resolved factual disputes purportedly raised in conflicting affidavits. As we read 43 Id. at 6 n.5, 9.
44 Licensing Board March 25, 1987 Memorandum and Order at 7-9.
45 Id. at 14-16.
22 the Board's opinion, it recognized that compliance with NRC/ FEMA criteria may be demonstrated by showing either that the expected sound level coverage is at least 60 dBC,'or that the expected sound pressure level exceeds the average measured summer daytime ambient sound pressure levels by 10 dB. Everyone agrees that the applicants did not satisfy the first criterion. The Board went on to conclude, however, that there are two alternative means of taking measurements to fulfill the second criterion. To satisfy -
regulatory requirements, the ambient background noise level should be measured in the full or one-third octave band containing the predominant tone of the sirens used. The Attorney General's consultant utilized the full octave band.
But the applicants applied the one-third octave band and demonstrated that the criterion was met. 'The Board relied on that latter demonstration.47 In the circumstances, we cannot conclude that there is a factual dispute or that there is a substantial likelihood that the Attorney General 46 The pressure level of sound is measured relative to a small reference pressure and is reported in units called decibels (dB). These measurements can be weighted by different filter circuits in the measuring equipment. One such measurement is weighted by so-called " filter C" and is referred to as decibels C, or dBC. See e.g., Mechanical Engineer's Reference Book, pp. 15-19 to 21 (A. Parrish, lith ed. 1973).
47 March 25, 1987, Memorandum and Order at 14-16.
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.. will: prevail on the merits of his claim that the Board-improperly declined to reopen the record.48 We also believe that the Attorney General has a difficult 1 challenge in seeking to overturn the Board's
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- judgment-that a proper balance o'f-the five lateness factors weighed against the movants. When reviewing a Board
- determination declining to admit a late-filed contention, we accord it wide latitude. We will not overturn its decision
. absent'a showing of abuse of discretion.49 We need not at this juncture. finally determine whether the Board properly weighed all five factors in 10 CFR 2.714.. Indeed the JI parties are entitled to amplify their presentations in this regard in.their briefs on appeal. For the present, we are satisfied that the Attorney General has not pointed to any
! glaring deficiencies in the Board's analyses so as.to
_ justify a conclusion of a strong likelihood that he will
, succeed on the merits.
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48 l The Attorney General concedes that use of the i one-third octave band is acceptable but argues that his i measurements using the full octave band create enough uncertainty to justify evidentiary exploration. We
?, disagree. There are no facts in dispute and the Board reasonably concluded that the applicants had satisfied applicable regulatory requirements.
49 Philadelphia Electric Co. (Limerick Generating a_
Station, Units I and 2), ALAB-806, 21 NRC 1183, 1190 (1985).
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24 Finally, SAPL complains that the Board improperly failed to require a " fully compliant" Safety Parameter Display System (SPDS) as a condition to issuance of the low-power license. Basically, an SPDS is designed to provide a concise display in the control room of all critical safety parameters. Although all the information available on the SPDS is displayed elsewhere in the control room as well, the SPDS provides control room operators with a central display of critical plant variables to aid them in rapidly and reliably determining the safety status of the plant.50 The ;
key purpose of the SPDS is to aid control room personnel during abnormal or emergency conditions.51-Supplement 1 of NUREG-0737' sets out various requirements for the SPDS. Among other things, it must display critical plant variables, be' located _in a place that is convenient to control room operators, be isolated from safety-related systems, and be designed to incorporate accepted human factors principles.52 Supplement 1 to NUREG-0737 also provides that SPDS requirements be 50 Eckenrode, fol. Tr. 822 at 2; Tr. 931. See generally LBP-87-10, 25 NRC at (slip opinion at 31-32).
See NUREG-0737, Clarification of TMI Action Plan Requirements (November 1980) at I.D.2-1; id., Supplement 1 (December 1982) at 7.
52 Eckenrode, fol. Tr. 822 at 2-3.
I ,.
25 implemented on a schedule to be negotiated between a licensee or applicant and the NRC staff. As far as Seabrook is concerned, the SPDS is not in total compliance with each of the requirements set out in the Supplement. To bring it into full compliance, the staff proposed a schedule to remedy identified deficiencies which, in the main, would require completion of outstanding items by the end of the first refueling outage.54 During the course of the proceeding below, the Board decided that all such corrections could not be deferred until the first refueling outage. At the same time, it rejected SAPL's assertion that all items have to be corrected before a low-power license is issued. Instead, it mandated certain actions concerning three deficiencies before plant' operations exceed five percent of rated power and found that, with such actions, the public will be adequately protected. The bases for'the Board's conclusions are fully explained in its partial initial decision.55 ggp3 challenges the reasonableness of the Board's determination 53 Id. at 3.
54 Id. at 4-5. See also Safety Evaluation Report Related to the Operation of Seabrook Station Units 1 and 2, Supplement No. 6 (October 1986) at 18-5 to 18-6.
55 See LBP-87-10, 25 NRC at (slip opinion at 7-14, 35-46).
3 26 but fails to address the Board's specific findings.
Instead, it continues to assert that NUREG-0737 requires that all elements of the SPDS be in place before any license is issued.
We disagree. Section 50. 57 (a) (1) protides generally that an operating license may be issued if construction of the facility has been substantially completed in accordance with statutory and regulatory requirements. Supplement 1, which sets out the requirements applicable to the SPDS, does not impose any fixed schedule for implementation of the SPDS. Rather, the schedule is left essentially to the staff's discretion. Contrary to SAPL's assertion, we find no requirement that all elements of the SPDS must be completed before low-power operation is authorized. Thus, SAPL has fail d to satisfy its heavy-burden of demonstrating that the Licensing Board's determinations concerning the SPDS are wrong.
56 SAPL also alleges that the Board erred in failing to direct the staff to produce a witness who would explain why an earlier schedule agreed to by the applicants had not been enforced. Although testimony by such a witness may have a bearing on the reasonableness of the schedule ultimately established, and the safety implications, if any, of such schedule, it would not affect our rejection of SAPL's argument that NUREG-0737 requires a " fully compliant" SPDS before a low-power license may be issued. Thus, it does not bear on our disposition of SAPL's stay request. SAPL, of course, is entitled to particularize its objection to the reasonableness vf the Board's decision as part of its appeal on the merits.
, o.
- 27 The foregoing conclusions do not mean that the intervenors' appeals from the March 25 partial initial decision are necessarily doomed to failure. To begin with, even on the issues raised in the stay applications, it is possible that a full briefing will persuade us that the intervenors should prevail. All that we now decide is that the stay papers do not themselves demonstrate the requisite high probability of such success. Moreover, we do not consider on a stay application any possible Licensing Board error not asserted by the movants. Presumably, the intervenors will advance in their appellate briefs claims of error that, perhaps because of the ten-page limit imposed by 10 CFR 2.788 (b) , .were not -included .in their stay applications.
C. Harm to Other Parties --
The applicants argue generally that the loss of the ability to conduct low-power testing at the earliest time possible constitutes a genuine deprivation. Relying on an
! affidavit by his consultant, Dale G. Bridenbaugh, the Attorney General contends that low-power testing requires l only three to four months and that there is little or no l advantage to such testing where, as here, there is likely to be a lengthy delay between completion of such testing and the commencement of full-power operation. Indeed, in Mr.
Bridenbaugh's view, "the initial operating phase at a new nuclear unit can be most efficiently performed if a smooth l
9 '
4
, 28 transition is made from fuel loading to low power operation and on to the power testing above 5%."57 The Commission has indicated that the primary benefit j of prompt low-power testing is "the early discovery and correction of unforese'en but possible problems which may prevent or delay full-power operation at an enormous expense-to [the utility] and/or its customers."58
^
In the typical case, we would be inclined to weigh this factor in an applicant's favor. In this instance, however, all issues related to a low-power license were litigated in 1983, yet the Licensing Board did not issue its decision for almost four-years. Had it issued its decision in a more timely j fashion, appellate review of pertinent issues would.
undoubtedly have long been concluded, obviating any stay request. At oral argument, counsel for the applicants pointed out that financial difficulties led to a temporary halt in the Seabrook project and, as a consequence, the applicants did not press the Board to move promptly to resolve the pending matters.59 Thus, the applicants bear 57 Attorney General's Motion for Stay, Exhibit 1 at 4.
58 CLI-85-12, 21 NRC at 1590.
59 App. Tr. 194-95 ("Nobody was pushing that Board for a decision at that point. Certainly I was not."). It was not until June 1986 that the applicants tendered a motion requesting issuance of a low-power license. See Applicants' (Footnote Continued)
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29 some responsibility for the urgency they now attach to the need for immediate low-power testing. Although we de not question the reasonableness or necessity of the applicants' decision not to have urged earlier resolution of issues related to the low-power license, we find that any harm to ~
the applicants would be to'some extent attributable to their own inaction.
D. Public Interest The Coalition asserts that the issues raised are important and novel and that the " balance of equities" favors issuance of a stay to preserve the status quo "peading a decision on the full power license or further review."60 The other movants raise similar arguments. The applicants contest the movants' assertions and claim, instead, that there is an affirmative public interest in testing the readiness of the plant for operation as quickly as possible. The NRC staff believes that the Commission recently addressed-the public interest issue implicitly when it decided in CLI-87-2 to stay issuance of a low-power license pending the submission of emergency plans for (Footnote Continued)
Motion for Incorporation of Certain Materials in Record; for Closing of Record; and for Issuance of Partial Initial Decision Authorizing Issuance of Operating License for Operation Not in Excess of 5% of Rated Power (June 17, 1986).
60 Coalition Motion for Stay at 10.
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30 Massachusetts.61 The staff urges us to await the Commission's resolution of the applicants' motion to vacate that stay before reaching any overall public interest conclusions.
We have decided not to defer ruling on the public interest question until the Commission completes its review of issues raised in CLI-87-2. The staff argues that, if the Commission lifts the stay, we should be governed by its judgment that the public interest favors issuance of a low-power license. But the Commission's determination will be limited to the single _ issue concerning the filing of an emergency plan for Massachusetts. It will not represent a judgment on the overall balance of public interest c nsiderations. Thus, we see no reason to delay disposition of the stay requests before us.
Turning therefore to the merits, we note that the Commission in the Shoreham case provided an analysis of the public interest costs and benefits of low-power testing in circumstances where it is unclear whether full-power operation will ever be authorized. The Commission observed:
So long as an applicant is willing to invest the substantial effort and money necessary to attempt to obtain a full-power license, the possibility of full-power operation at a future date gives substantial value to low-power testing. Moreover, whenever a low-power motion has been filed where 61 See 25 NRC .
t- _
g., e 31 full-power issues are also pending (a common occurrence), there is always uncertainty over the outcome of the full-power proceeding. Delaying the low-power license until that uncertainty is eliminated irretrievably deprives the applicant and earlyits customers low-power of the 3ubstantial benefits of testing.6 The Commission observed that section 50.57(c) of its regulations, authorizing the issuance of a low-power license, is premised on the idea that "the inherent benefits of early low-power testing outweigh the' uncertainty that a full-power license may be denied."63 We are bound by that determination absent,-at least, some demonstration that circumstances unique to Seabrook warrant a different result.64 There has been no such demonstration.
The applications for stay of LBP-87-10 are denied.
62 See CLI-85-12, 21 NRC at 1590.
63 Id. at 1591.
64 The Court of Appeals in Shoreham was of the view that the public interest did not either strongly favor or disfavor the grant of a stay. See Cuomo, 772 F.2d at 978.
Significantly, the court did not conclude that the public interest required a maintenance of the status quo.
~
- , s. - P 32 It is so ORDERED.
FOR THE APPEAL BOARD A ^ -N __Y" d Barbara A. Tompkins' Secretary to the 2
Appeal Board o
si