ML20215N066
| ML20215N066 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/31/1986 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#486-1427 OL-1, NUDOCS 8611040234 | |
| Download: ML20215N066 (77) | |
Text
.- _ ---
- wme ORJGAAL O
UMlTED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
50-443-OL-1 50-444-OL-1 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE (Seabrook Station, Units 1 and 2)
(On-Site Emergency Planning and Safety Issues)
LOCATION:
BETHESDA, MARYLAND PAGES:
1 75 DATE:
FRIDAY, OCTOBER 31, 1986
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Dl ACE-FEDERAL REPORTERS, INC.
OfficialReporters 444 North CapitolStreet Washington, D.C. 20001 g511 o 2 n a 3..
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(202)347-3700 Y
NATIONWIDE COVERAGE
3CR 28737 1
.10/31/86 1
UNITED STATES OF AMERICA
'N SueWalshl 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE APPEAL BOARD i.
4
X 4
5 In the Matter of:
6 PUBLIC SERVICE COMPANY OF Docket Numbers 50-443-OL-1 4
NEW HAMPSHIRE, et al.
50-444-OL-2 7
(Seabrook Station, Units 1 & 2):
8
X i
j 9
1 10 4350 East-West Highway 5th Floor Hearing Room 11 Bethesda, Maryland j
12
. Friday, October 31, 1986 14 The oral arguments in the above-entitled matter j
15 convened at 10:30 a.m.,
l 16 BEFORE:
17 ALAN S. ROSENTHAL, Chairman
]
Appeal Board 18 U.
S. Nuclear Regulatory Commission l
Nashington, D. C.L20555 19 GARY J.
EDLES, Member I
20 Appeal Board U.
S. Nuclear Regulatory Commission 1
l 21 Washington, D. C.
20555 i
22 HOWARD A. WILBER, Member l
Appeal Board i
23 U.
S. Nuclear Regulatory Commission Washington, D. C.
20555 25 l
f
(
2 1
APPEARANCES:
2 ON BEHALF OF THE APPLICANT:
3 THOMAS G.
- DIGNAN, JR.,
ESQUIRE and 4
KATHRYN A.
SELLECK, ESQUIRE Ropes & Gray 5
225 Franklin Street Boston, Massachusetts 02110 6
ON BEHALF OF SEACOAST ANTI-POLLUTION LEAGUE:
7 ROBERT A.
BACKUS, E3 QUIRE 8
Backus, Meyer & Solomon 116 Lowell Street 9
Manchester, New Hampshire 03105 10 ON BEHALF OF THE ATTORNEY GENERAL, COMMONWEALTH OF MASSACHUSETTS-11 CAROL SNEIDER, ESQUIRE 12 Commonwealth of Massachusetts Department of The Attorney General 13 1 Ashburton Place
' _/
Boston, Massachusetts 14 ON BEHALF OF THE NUCLEAR REGULATORY COMMISSION STAFF.
15 ROBERT PERLIS, ESQUIRE 16 and EDWIN REIS, ESQUIRE 17 Office of The General Counsel U.
S.
Nuclear Regulatory Commission 18 Washington, D.
C.
20555 19 20 21 22 23 9
24 25
3 1
_I N _D _E _X 2
3 ARGUMENT BY PAGE NO.
4 Ms. Sneider 7
5 Mr. Backus 24 6
Mr. Dignan 35 7
Mr. Perlis 53 8
REBUTTAL ARGUMENT BY 9
Ms. Sneider 64 10 Mr. Backus 69 11 12 14 15
]
16 17 18 19 20 21 22 23 4
24 25
4 1
PROCEEDINGS
_a 2
JUDGE ROSENTHAL:
Good morning, ladies and 3
gentlemen.
This Board is hearing oral argument today on the 4
pending appeal of The Attorney General of the Commonwealth of 5
Massachusetts in this operating licensing proceeding involv-6 ing the Seabrook Nuclear Power facility.
7 The Attorney General's appeal, which is joined in 8
by the Seacoast Anti-Pollution League, is from the Licensing 9
Board's October 7, 1986 Memorandum of Order authorizing the 10 issuance of an ooerating license allowing fuel loading and 11 pre-criticality testing at Seabrook.
It is ooposed by both l
12 the Applicants and the NRC Staff.
l
[~'
13 The oral argument is governed by the terms of our J
14 October 27 Order.
As provided therein, each side has been 15 allotted 45 minutes for the presentation of argument.
As 16 also stated in the Order, the argument is restricted to the 17 question of whether, in the circumstances of the case, 18 10 CFR 50.33(g) precluded the authorization of fuel loading 19 and pre-criticality testing.
N In this connection, the members of the Board have 21 read the appellate papers of each of the parties with some 22 care and are quite familiar with the assertions contained 23 therein.
24 I will now call upon counsel to identify them-25 selves for the record.
And, I will start with counsel for
5 1
the Attorney General.
2 MS. SNEIDER:
Carol Sneider, Assistant Attorney 3
General, representing Attorney General Ballotti.*
4 JUDGE ROSENTHAL:
Thank you, Ms. Sneider.
- And, 5
counsel for the Seacoast Anti-Pollution League.
6 MR. BACKUS:
Mr. Chairman, I am Robert A.
Backus 7
from Manchester, New Hamoshire.
And, I annear for the 8
Seacoast Anti-Pollution League.
9 JUDGE ROSENTHAL:
Thank you, Mr. Backus.
- And, 10 counsel for the Applicants.
11 MR. DIGNAN:
Mr. Chairman, members of the Board, 12 my name is Thomas G.
Dignan, Jr.
I am a member of the law
[}
13 firm of Ropes & Gray, 225 Franklin Street, Boston, V
14 Massachusetts.
15 With me is my colleague, Kathryn A. Selleck of 16 the same address.
17 JUDGE ROSENTHAL:
Thank you, Mr. Dignan.
- And, 18 counsel.for the NRC Staff.
19 MR. PERLIS:
Good morning, Mr. Chairman.
My name M
is Robert Perlis.
I am with the NRC's Office of General 21 Counsel.
I will he nresenting the argument for the NRC 22 Staff today.
23 To my right is Edwin Reis from our office.
24 JUDGE ROSENTHAL:
All right.
Before commencing 25 the argument, I think there is one housekeeping detail.
And
6 1
that is our examination of the brief received yesterday from
\\'
2 the Seacoast Anti-Pollution League indicated that SAPL is raising questions beyond those that -
beyond that question 3
4 which has already been briefed by all parties and which is 5
the subject of the argument this morning.
6~
The Board has. decided that responses to the SAPL 7
brief on those additional issues shall be filed, i.e. placed 8
in the mail by one week from this coming Monday.
9 All right.
On that note -- let me ask, Ms.
10 Sneider, have you and Mr. Backus agreed on a division of-the 11 time on your side of the case?
12 MS. SNEIDER:
Yes.
I I
(
13 JUDGE ROSENTHAL:
And, what is it?
14 MS. SNEIDER:
Your Honor, we will each take half l
15 of the time.
l 16 JUDGE ROSENTHAL:
And, did you want to reserve 17 time for rebuttal?
18 MS. SNEIDER:
Yes, we do, Your Honor, 19 JUDGE ROSENTHAL:
How much do you wish to reserve 20 collectively?
21 MR. BACKUS:
Ten minutes.
22 JUDGE ROSENTHAL:
Ten minutes?
All right.
So, Z3 then your collective openings will be 35 minutes.- And, Ms.
24 Sneider, I assume you are going to argue first?
25 MS. SNEIDER:
Yes.-
l
7 1
JUDGE ROSENTHAL:
All right.
Has there been a
~
2 division of time on the appellees' side?
3 MR. PERLIS:
Yes,'Mr. Chairman.
We will be 4
dividing our time equally.
5 JUDGE ROSENTHAL:
All right.
And, I take it 6
Mr. Dignan will go first?
7 MR. PERLIS:
That's correct.
8 JUDGE ROSENTHAL:
Very well.
Ms. Sneider, you 9
May proceed.
10 MS. SNEIDER:
Good morning, Mr. Chairman, members 11 of the Board.
Your Honors, the Commonwealth views this 12 issue really as a very straightforward one.
(
13 Section 50.33(g) requires, as part of the 14 application process-for an operating license, that radiologi-15 cal emergency response plans of all state and local ~ govern-16 mental' entities within the Seabrook EPZ be submitted to the 17 NRC.
18 JUDGE ROSENTHAL:
What happened in Shoreham?
As 19 I. understand it, there is a low power license outstanding in 2
Shoreham, with the Commission's blessing, and there is no 21 state and local plans, are there?
22 I thought that New York, both Suffolk County and 23 the State of New York, had declined to participate in 24 emergency planning.
-Now, how do you reconcile -- if I'm.
~
M correct -- as to the situation in Shoreham, how do you
8 1
reconcile that situation, what the Commission has allowed in 2
Shoreham, with your. interpretation of 50.33(g)?
3 MS. SNEIDER:
It's correct, Your Honor, that there 4
are no plans of the state and local governmental entities 5
per se; however, the utility in that case has attempted to 6
compensate for that fact and'has submitte'd utility plans 7
which address emergency planning issues for the local area.
8 JUDGE ROSENTHAL:
But, the 50.33(g) says state 9
and local.
And, I don' t see - anything in 50. 33 (g) that 10 authorizes the substitution of a utility plan for'a state 11 and/or local plan.
12 MS. SNEIDER:
Pursuant to 50.47(c), the Commission 13
.or the Licensing Board in Shoreham --'and the C6mmission has 14
~
. affirmed that decision -- has said that the utility should 15 be given an opportunity to demonstrate that its plan could 16 satisfy -- could make up for the' deficiencies and the-lack 17 of __
18 JUDGE ROSENTHAL:
Well, what I'm getting at is 19 that the Commissi6n has certainly held, has it not, that 20 50.33(g) is not to be read literally, because if it.were 21 to be read literally, as you see it, you would have to have 22
- a. state or local plan, wouldn'.t you?
23
,MS. SNEIDER:. Well, I think you.do have to have 24 a state or local plan; but, I think'regardless of that,.
25
_that no one has ever.said that it-doesn't need to be any plan 2 ---
9 1
submitted that addresses emergency. planning issues for the
/N b
2 local communities.
'3 JUDGE ROSENTHAL:
But, wouldn't you agree that 4
we can't really read the-provisions of the regulations 5
literally anymore?
6 And, isn't that-what the Shoreham case sort of 7
tells?
And, remember Shoreham was predicated, at least in 8
part, on the legislation which was the Authorization' Acts, 9
which I assume to the extent they. are. inconsistent with the 10 regulations, will probably prevail.
11 I guess my only point is -- I understand the point 12 you are making on the literal language of.the regulation,
(}
13 and I recognize that.
But, what I'm asking is, haven't some 14 of these things'really kind of been overtaken by time?
15 MS. SNEIDER:. Well, I still maintain that this is 16 a very different issue where the utility has not attempted 17 to demonstrate that they are able to satisfy the requirements 18 of the regulation any other way.
There have been no plans 19 at all submitted in this case for that portion of the EPZ 20 within Massachusetts.
21 JUDGE ROSENTHAL:
Well, hasn't the Applicant 22 submitted a plan?
I thought that the Applicants' plan called 23 for -- in the event of an emergency, the Applicants' notifica-0 24 tion-of the state police dispatcher in Massachusetts and the 25 state. police dispatcher according to the Applicants' plan
10 1
would then be called upon to notify the appropriate emergency
,I 2
response people.
Am I wrong about that?
3 MS. SNEIDER:
The Applicants' plan, they say that, 4
although the state police dispatcher in Massachusetts, I 5
believe, has not agreed to do that, to participate in that 6
event.
7 JUDGE ROSENTHAL:
It's held in Shoreham, I thought, 8
that where Governor Cuomo was quite emphatic that the state 9
was not going to participate.
The Commission said that it 10 was prepared to assume that the state and the local govern-11 ments, notwithstanding that declaration, would do their best.
12 Now, are we to assume anything less in the case
(^
13 of the Massachusetts state police dispatcher?
14 MS. SNEIDER:
Well, even if we could assume that, 15 I think that's not really the issue here.
I think the issue 16 here is, there haven't been plans submitted.
There haven't 17 been evacuation plans, and perhaps those aren t necessary at 18 this stage but the regulations do require their submission at 19 this stage.
M JUDGE ROSENTHAL:
Where does it say at this stage?
21 Where do you find in 50.33(g) a requirement that the plans 22 be submitted prior to the issuance of fuel loading and pre-23 criticality testing license?
24 I don't see anything in 50.33(g) that specifies 25 timing on the submission of state and local emergency plans
11 I
at all.
('x -
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'2 MS. SNEIDER:
Well, it's the Attorney General's
~3 contention that the requirement is part of the application.
4 process and,.you know,.jusf by the very nature of as applica-
- p. A 5
tion that you can assume that's a requirement before-issuance 6
of an operating license.
7
~And, the Commission's language in-the statement 8
of. considerations of the emergency planning. regulations'says 9
that plans shall be submitted. prior to issuance of an 10 operating license.
11 JUDGE EDLES:
But, isn't an operating license, j
l 12 though, in the context of this-a tern-of-art.which means i
} (
13 a full power license?
14 When the Commission says operating license, isn't i
15 that really what they mean?
They mean, you've got to have l
16 emergency plans, off-site emergency plans,'before we can 17 issue a full power license.
Isn't that what they mean?
18 MS. SNEIDER:
_ Well, the regulations don't 19 distinguish in terms of submission of plans.
I mean, the 20 Applicants have said they have just received their full i
l 21 30-year operating license with a few conditions.
Those are 22 the news _ releases they are~ issuing.
23 JUDGE EDLES:
._W e l l, I --
6 24 MS. SNEIDER:
You know, there is a condition i
M limiting their power ---
1 i
12 JUDGE EDLES:
That's not my' problem.
I'm not
- 1 I'
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2 here ruling on the correctness or not of the advertisements.
My question is, in looking at the Commission's 3
)
rules, yes, it does say you have to have off-site emergency 4
plans as a condition for getting an operating' license.
What 5
6 I'm saying is that the operating license in that context 7
means a full power license.
And, I would agree with you that 4
8 you need to have an approved plan of some sort, off-site plans, before an operating license.
9 Why isn't an operating license in 'that context 10 I
[
11 different from a five percent one?
12 MS. SNEIDER:
Because the requirement savs operating license.
The only place where I see any distinctior (a"N t
13 j
34 in the olans between types of licenses, 50.47(d) which says 15 n
findings, et cetera shall need to be made before issuance l
16 of a 1 w p wer or fuel loading license.
There is never any 17 place where it obviates a requirement for submission of 18 plans.
JUDGE EDLES:
I agree with that.
But, as was 19 20 Mr. Rosenthal's point, there is also no provision in the 21 rules which direct when any particular element or a portion
~
22 of the application has to necessarily be filed.
23 And, as I understand'it, we routinely get off-site 24 emergency plans well into the hearing process.
I mean,-you 9
I 25 know, there have been a number of cases which have involved
13 1
contentions which come in well after substantial portions O
s/
2 of the case are already finished.
And, they are almost 3
always dealing with 6ff-site emergency planning.
4 And, I assume that those plans get prepared and 5
they~ are ultimately submitted, whether they are an Applicant i
6 plan, as in Shoreham, or some other.
And,'I don't see in l
7 the rules any requirement that all of this stuff has to be 8
there, you know, back five or six years ago before we get
)
9 started with any part of the case.
10 MS. SNEIDER:
Well, I still say the regulation 11 does not distinguish between types of licenses and its 12 requirement to the application process and plans have to be 13 submitted.
[)
j 14 I would also submit that, you know, the purpose i
15 of 50.47(d), the way I read the regulatory history, was
- 16 to expedite the hearing process somewhat because there are 17 problems with delays in FEMA's being able to make findings 18 quickly enough~.
You know, I submit that the submission of f
19 plans, you know, just doesn't enter into that.
N If plans haven't even been submitted, then-you i
21 can't even say that FEMA is delaying things.
22 JUDGE ROSENTHAL:
Is it your position that at 23 the time of the application, 'there must-be a plan submitted 24 by the state and/or local governments?
25 MS. SNEIDER:
It's our position that prior to
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issuance of a license there must be a-plan submitted.
We' ^
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-2 are not going to quibble about at exactly what point before 3
that it needs to be submitted, but dt least --
4 JUDGE ROSENTIIAL:
But,[you can't-iss,ue a fuel 1
5 loading license without state and local plans; is that your 6
position?
7 MS. SNEIDER:
No, it's not our position.
8 JUDGE ROSENTHAL:
All right.
I don't understand 9
what it is, then.
I thought, in this case, you were saying 10 that until there are state-and local plans on the table i
11 there can be no authorization'of anything.
12 Am I wrong about that?'
13 MS. SNEIDER:
Until the plans ~are-submitted, 14 right.
There can't --
15 JUDGE ROSENTHAL:
So, you are saying that you-i
)
16 can't issue a fuel loading license unless there are_ state 17 and local governmental plans on the table or a utility plan 18 in lieu thereof?
That's your position?
19 MS. SNEIDER:
That's correct.
M JUDGE ROSENTHAL:
Now, how do you square that 21
.with the -- it seems to me to be the Commission's view, t
22 rightly _or wrongly, as reflected by the Shoreham case, 23 that off-site emergency planning is essentially a no-never-24 mind until you get beyond five percent.
i 25 Isn't that the message that the Shoreham decisions
15 convey?
Now, they may be wrong.
But, we are-a subordinate g
\\
tribunal here, and we are bound by what the Commission has 2
to say.
i 3
^
And, hasn't the Commission really said that, 4
that just don't worry about off-site emergency planning 5
until you get'above five percent.
Up to five percent, it 6
just doesn't make any difference.
7 And, if that's right, why should we conclude that 8
4 the Commission's view is that without a state or local plan 9
j 10 y u can't even give a fuel loading license?
i MS. SNEIDER:
Well, I think it just goes_back to 13 what the regulations say.
And, the regulations do require 12 submission of plans.
50-47(d) says you don't need to make 13 1
]
findings on those plans before issuance of a fuel loading 34 license.
j 15 I think they are two very different issues.
16 JUDGE EDLES:
Mhat's the purpose then for'the 37
{
submission of the plans if we don't have to really look 18 at them?
gg MS. SNEIDER:
Well, at least the review process g3 l
can start at that point.
21 JUDGE EDLES:
And, you are moving forward the 22 review process?
Is that the goal here?
23 t
.Well, I think the goal here is MS. SNEIDER:
24 compliance with the regulations.
You'know, it'doesn't seem 25 l
2 f
m.
16 1
to make sense to us if plans are never going to even be i
2 submitted, why they should be allowed to load fuel at this 3
point.
4 JUDGE EDLES:
We have been over -- the Commission 5
was over this ground in Shoreham, and those arguments 6
essentially were put forward, in fact even by the Licensing 7
Board which suggested you shouldn't issue a low power license 8
where it was unclear that you would ever get a full power.
9 And, I think that's the Chairman's point.
I 10 mean, aren't we really stuck, whether we like it or not, 11 with what the Commission is doing at Shoreham?
12 MS. SNEIDER:
Well, I think there is some basis 13 to distinguish.
I mean, there are several that I have raised.
)
14 But, at least in Shoreham the utility made an 15 attempt to compensate for the lack of local plans.
- Here, 16 they -- I mean, that's what the regulations say, that they 17 should be allowed an opportunity to demonstrate that other 18 plans would satisfy --
19 JUDGE ROSENTHAL:
Well, let me ask you about that.
M Supposing the utility had put forth this plan and said:
This 21 is the utility plan as a substitution for a Massachusetts 22 plan.
And the plan is that Paul Revere will be removed from 23 the cemetery and he will ride through the countryside, to S
24 the north or the south or whatever it was.
25 Now, they say:
This is the utility plan.
And
-17 1
.this is the Shoreham qualified utility plan.
Now, is that O
t
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2 going to suffice?
And, if not, why not?
3 MS. SNEIDER:. Well, in some sense, a literal' reading of the regulations,;it would suffice.
I'would sug-4 5
gest that just as the Applicants stated, you know, it's up 6
to the Staff just to review submissions for the applications 7
.to see if the application is complete, that at least there 8
would be some just cursory review of the plan to make sure 9
it is what it's called, that it is in fact a plan.
l
.10 You know, we won't go into it at this point 11 whether the plan is adequate, but at least it attempts to 1:L be what it says it is.
13 JUDGE ROSENTHAL:
All right.
Would you focus 14 for a moment on the Commission's response on Issue 6?
This 15 was the -- I think the parties were asked to be particularly 16 familiar with that.
17 For the record, what I'm referring to is the 1
18 Federal Register of Tuesday, July 13, 1982, and that's' 19 Volume 47, Page 30234.
And, this was part of the legislative 20 history of the amendments to 10 CPR 50.47 that were adopted 21 by the Commission in July 1982.
22 Now, the Commission stated there that prior to 23 issuing an operating license authorizing the low power 8
24 testing and fuel loading, the NRC will review the following M
off-site elements of the Applicant's emergency plan.
- And,
18
-1 then'it goes on down these elements.
A
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2 Doesn't that suggest, Ms. Sneider, that the 3
preconditions, as far as the Commission is concerned, to the issuance of a fuel, loading and'indeed a low power testing 4
5 license is simply that there be-an Applicant's emergency 6
plan on the table which.has certain elements as set forth 7
in this section and that the Staff has looked at it?
8 MS. SNEIDER:
Well, I think what the Commission 9
says is just what the regulation is, that there must be a finding that the Applicant's on-site plans are adequate 10 11 before issuing a low power or fuel loading license, but 12 there need not be any finding that the local or state plans
(}
13 are adequate.
But, that -- I mean, it still left intact the 14 requirement that these plans be submitted.
15 JUDGE ROSENTIIAL:
Why should the -- what is the 16 sense of a requirement that-plans be submitted before a 17 fuel loading license is issued if nobody even has to review 18 it?
19 I mean, the Commission has specified here what has 20 to be reviewed.
The only thing that has to be reviewed beforc 21 a fuel loading license issuance is the Applicant's own plan.
22 It has to be only looked at in certain limited respects.
23 Now, to me, offhand -- maybe I'm missing something, 24 but it doesn't seem to me to make very much sense to say that 25 the commission has required the filing of a state plan prior
19 1
to the issuance of a fuel loading license when, concededly
/
2 if that plan is filed nobody is even going to look at it.
3 MS. SNEIDER:
Well, I think once the plan is 4
filed that does start the process for looking at the plan.
5
.And, you know, my job in handling state environ-6 mental regulations has -- I see over and over state statutes 7
which require that before the agency will even look at an 8
application for a permit, they have to have all the other 9
permits in place.
I mean, I think it's just -- you know, 10 before we give you this license, at least comply with the l
11 very basics.
12 It doesn't seem that farfetched to me when fuel f'
13 loading and low power testing usually just takes a matter of 14 a few months, where litigation over off-site plans can take 15 many months.
16 JUDGE EDLES:
Ms. Sneider, would you agree that 17 the regulations, 50.33(g) and 50.47, when looked at together 18 are probably a bit ambiguous in terms of trying to mesh the 19 two notions?
O I mean, 50.33(g), I guess, was part of the emergency 21 planning rules in 1980.
The Commission added 50.47 in '82, 22 maybe didn't go back and make sure it all neatly fit together, 23 But, it seems to me that the problem we have here 24 is attempting to rationalize two regulations which don't 25 exactly fit together.
What I think the Chairman is trving to
r 20 I
get at, and what I'm trying to get at is, if my perception i
s 2
of the problem is, correct, what's the sensible resolution 3
of this?
4 It seems to me
-- and. explain to me why my 5
reasoning is wrong, but it seems to me that if we were to 6
adopt your argument we would, in effect, be writing out 7
50.47.
If we were to accept the Applicants' argument, we 8
would nonethless be requiring the filing of off-site emergency 8
plans before a full power operating licsense could be issued, 10 so we could consistently read the regulations in that respect.
11 Why isn't that a more sensible resolution to the 12 problem?
I realize you don't win under that, but exclain 13
(
')
to me why that is not a sensible resolution.
14 MS. SNEIDER:
Mcll, two things.
Perhaps it's 15 sensible, but that's just not what the regulations require.
16 Secondly, I think -- I mean, I think the other solution to 17 require the submission of plans first is equally, if not more, 18 sensible that, you know, if you require at least a showing of 19 compliance with the regulations it's some basis, at that point 20 at least, for authorizing the fuel loading and thereafter low 21 power operationg, which does cause contamination of the 22 plant.
23 At least you can say in some respects, there is 24 compliance.
We don't know if the plans are adequate yet, 25 but at least there are plans there.
We can say there is some
21 1
basis, you know --
_s 2
JUDGE EDLES:
I agree'with you that,that is a 3
sensible -- or, one sensible construction of the regulation.
4 However, the problem I have is that is precisely the argument 5
that the Licensing Board raised in the Shoreham case and 6
which the Commission essentially rejected when they said:
7 Look, even though it doesn't -- it may n'ot be nossible to 8
have off-site emergency planning go all the way so the 9
Applicant will get full power license, that has nothing to 10 do with the low power license even though you contaminate 11 the plant and you do all those things that you are mention-12 ing.
('
13 I don't see any way around the Commission's 14 rationale in Shoreham.
15 MS. SNEIDER:
Well, I think --
16 JUDGE EDLES:
Are you familiar with that case?
17 MS. SNEIDER:
Yes.
I just lost my train of 18 thought.
19 JUDGE EDLES:
Take a second.
What I was trying i
N to get back to was why it would not -- that your argument l
21 was reasonable, this notion that we can read the regulations 1
22 consistently in a way that requires the nrocess, at least, 23 to begin on full power through the filing of off-site plans, i
24 the requirement that it be filed before we issue a low 25 power license.
And, ny observation at that noint is that
]
22 4
1 I agree with you, that is not an unreasonable' reading of'the 2
regulations and you can probably mesh them on that basis, 3
except that that isn't what the Commission did in Shoreham.
4 MS. SNEIDER:
Okay.
The Licensing Board in i
5 Shoreham did find 50.33(g) requirements mandatory, but they 1
j 6
said 50.47 (c) allowed the Applicant an opportunity to demon-a 7
strate that they could comply with the regulations in 8
another way.
{
9 Here, the Applicants have not attempted to demonstrate that they could comply with the regulations in 10 j
11 another manner.
And, I think that's what the distinguishing
)
)
12 factor is.
1 f
13 JUDGE WILBER:
You are saying that 50.47 (c) is i
14 an acceptable alternate to 50.33 (g), that 50.47(d) is not; i
15 is this correct?
)
16 You are saying 50.47(c) can temper that literal 17 reading of 50.33(g) 18 MS. SNEIDER:
That's correct.
19 JUDGE WILBER: -- but you say that 50.47(d) 33 cannot do that?
Is th.ie your argument?
j 21 MS. SNEIDER:
Right.
50.47 --
22 JUDGE WILBER:
They were issued at the same time; I
23 is this correct, 50.47(c) and150.47(d)?'
l i
24 MS. SNEIDER:
I don' t believe they were.
I believe 2
50.47(c) -- perhaps I'm wrong on that.
l
22 1
JUDGE WILBER:
I was under the impression 'they bi '
\\d 2
were both issued --
3 JUDGE EDLES:
I think that's right.
I think they 4
were part of the 1982 revision.
5 JUDGE WILBER:
But, you are applying a tempering, 6
if you will, of 50.33(g) of one of these and not of the 7
other?
8 MS. SNEIDER:
Well, 50.47(d) says.that no findings 9
need be made before issuance of an operating license.
It 10 doesn't say that plans need to be submitted.
11 I think it's --
12 JUDGE EDLES:
Not merely findings.
It also says
(}
13 no FEMA review.
In other words, what that says is you don't 14 even have to star'c the process.
That's what it sort'of 15 suggests at least.
16 It does say no NRC or FEMA review, and I'm 17 quoting now, "... review, findings or determinations concern-18 ing the state off-site emergency preparedness."
19 So, it hints at least -- it isn't perfect, but 20 it hints that you don't even have to start the review process, 21 you know, by the filing of these things.
22 MS. SNEIDER:
But, the problem that I see is that 23 this regulation was promulgated because the review process 24 was taking so long.
And, if there aren't even plans there 25 submitted at that point, then you can't even --
23 1
JUDGE EDLES:
Well, I'm not' disagreeing with
\\-)
2 you.
I'm merely surprised that it's the Attorney General 3
rather than the Applicant who is making that argument.
I 4
mean, it seems to me, in all of these cases, the Applicant 5
is the one that is eager to get the show on the road here.
6 And, I am always bemused when I get an argument 7
from counsel that looks to me like it ought to be made by 8
the other side.
And, that's why I'm wondering ---I mean, 9
I understand the point you are making, but if the Applicant, 10 you know, isn't worrying about that, why should we adopt 11 that as the rational?
12 MS. SNEIDER:
Because the show is on the road when 13 they start loading fuel into the reactor and conducting pre-14 criticality testing.
Next, it will be low power operation 15 perhaps.
16 And, you know, so we are concerned about that when 17 we don't think the regulations have been complied with.
18 JUDGE ROSENTHAL:
I think your half of the time 19 has expired, Ms. Sneider.
You will have an opportunity for 20 rebuttal.
21 MS. SNEIDER:
Thank you, Your Honor.
22 JUDGE ROSENTHAL:
Mr. Backus.
I think, Mr.
23 Backus, you have got some idea as to what our concerns are 24 here.
25 MR. BACKUS:
Yes, I certainly do.
24
'1 JUDGE'ROSENTHAL:
And, perhaps you could focus 2
on them.if you would.
3 MR. BACKUS:
Thank you, Mr. Chairman.
I will-try-4 and do that.
I would like to thank the Appeal Board for 5
scheduling this at 10:30 instead of 10 in view of my arriv-6 ing here in the City this morning.
7 As it turned out, I was the first one in the 8
hearing room, but I appreciate your' consideration.
9 JUDGE ROSENTHAL:
I'm glad to hear that some 10 '
planes do arrive at National Airport on schedule.
It was 11 our element of skepticism that led us to suggest that 12 perhaps we might --
i
(
13 MR. BACKUS:
I was even happier to find out that 14 the Metro was out here, and I will be able to get back at 15 much less cost, I gather.
16 JUDGE ROSENTHAL:
Probably faster, too.
17 MR. BACKUS:
Probably faster, I'm told.
I do 18 want to address the matters that you have been addressing to 19 Attorney Sneider here.
20 And, the thing I want to start with is the ques-21 tion of whether the regulations need to be read literally, 22 because I think we've got a very good argument here if you 23 do read the regulations literally.
And, I certainly think 24 you have to read the regulations literally.
4 25 JUDGE EDLES:
But, Ms. Sneider said you read them
25 1
. kind of literally.
I mean, she conceded, I believe,.that
~
2 when it says state and local plans that really means state, 3
~ local.or utility alternate plan.
4 MR. BACKUS:
Yes.
j 5
JUDGE EDLES:
'So, it's reading them literally I
6 but not-quite.
I mean, just'a tad.
7 MR. BACKUS:
Well, you've got a very good reason 8
not to read it literally there.
You've got an act of 9
Congress-which I think --
10 JUDGE EDLES:
That's right.
11 MR. BACKUS:
effects a kind of' amendment to-12 the regulations which derive from acts of Congress pro tanto.
13 But, I don't think that you can leap from that to 14 saying that you can just ignore the mandatory requirements of 15 50.33(g).
16 JUDGE ROSENTHAL:
All right.
I will read 50.33(g) 17 literally, but where do I find the requirement, the literal 18 requirement, that the state and local plans or substitute 19 utility plans be on file at'any specific time?
M MR. BACKUS:
You find that in the fact that this 21 is a mandatory requirement for an application and that no 22 license is to be issued pursuant to 50.47 without a finding 23 that the Commission's regulations have been met,and the 24 facility has been constructed or substantially completed in 25 accordance with the terms of the application.
~
26 1
JUDGE ROSENTH,AL:
The question is, where d'oes n)
\\s_
2 it appear in 50.33(g) that this particul r aspect of the 9
3 application, to-wit:
the state and local plans, must be 4
on file prior to the issuance of a fuel loading license?
5 Where does it say that?
When you say read it 6
literally, now if there was an express provision that the 7
application must be complete in all respects, including these 8
plans, prior to the issuance of any kind of license, that 9
would be one thing.
The regulation doesn't say that explicit 1y.
10 You are reading that into it, aren't you?
11 MR. BACKUS:
Well, I don't really think so.
I 12 understand it says the license can be issued in connection 13 with the application as amended and that anticipates that
()
14 there will be a process of amending the application, but 15 since Three Mile Island and the emergency planning regula-16 tions, this is not a more item to be part of an amended 17 application.
It's a key additional safety feature beyond 18 engineered safeguards.
19 JUDGE ROSENTHAL:
Well, let me ask you this 20 question in that regard.
Supposing that the Applicants' 21 submitted its utility plan -- it may go beyond Paul Revere, 22 but whatever it does -- submits the plan, comes to the Staff, 23 here it is, the utility's plan for emergency response in the
(~N 24 Commonwealth of Massachusetts.
The Staff says:
Okay, there N)
25 is the plan.
And they take it and nobody even looks at it,
27 1
puts it up in the corner somewhere, nobody ev'en knows n
2 what it says other than the Applicants.
Nobody reviews it.
3 Now comes the Staff and it wishes to issue a fuel loading 4
pre-criticality testing license.
Can it do it, consistent 5
with the regulations?
6 MR. BACKUS:
Well, I'm not sure.
But, of course, 7
that's not this case.
And, I don't agree with the Paul 8
Revere analogy either.
But, I think --
9 JUDGE ROSENTIIAL:
Well, forget it.
Let's just to say it goes beyond Paul Revere.
I'm asking you this ques-11 tion, whether, as you interpret these regulations, just as 12 long as the plan is filed -- it doesn't make any difference 13 whether anybody has looked at it, just as long as it's
}
14 filed, then you can have a pre-criticality testing license?
15 MR. BACKUS:
I'm afraid I have to admit my 16 answer to your question is yes, given the Commission's 17 position in the Shoreham case.
18 JUDGE ROSENTilAL:
Well, if that~is the case, Mr.
19 Backus, and bear in mind --
20 MR. BACKUS:
It's an unfortunate situation, but 21 I think that is probably the situation.
22 JUDGE ROSENTIIAL:
If that is the case, that 23 nobody even has to look at the plan, what sense is there 24 to interpreting 50.33 (g) as requiring this plan to be filed?
25 Certainly, there are no safety implications in it,
28 I
because by your own admission they don't even have to look 2
at it.
Nobody has to determine whether the plan is even 3
superficially satisfactory.
4 MR. BACKUS:
Well, I don't agree there is no 5
safety implications in that.
The whole premise here is 6
that there is some gain in safety from doing emergency plan-7 ning.
8 And, of course, important though the Commission 9
be, and its Staff, to the assurance of nuclear safety, the 10 primary requirement for safety always depends upon Appli-11 cants, and in the case of emergency planning a lot of people 12 beyond the Applicants' direct control.
So, the existence
()
13 of a plan does provide some additional margin of safety even v
14 though it may not have been reviewed.
15 And, I don't think anybody would really quarrel 16 with that.
What we have at Seabrook, of course, is a case 17 where there are just no plans at all for a third of the 18 emergency planning zone, those six towns in the Massachusetts 19 area, none whatsoever.
m I would ask the Board to consider, if it was really 21 intended to have 50.47(d) effect an amendment to 50.33(g),
22 why wasn't that done?
There was no change in the require-23 ment that those plans shall be submitted as part of an 24 application.
25 JUDGE WILBER:
Then, you don't agree with Ms.
29
~
1 Sneider that 50.47(c) does amend 50.33(g)?
l J
2 MR. BACKUS:
Not cutomatically.
It provides an 3
opportunity for the Applicants if they choose to avail them-4 selves of that, another way that they can do it.
As I see 5
it, the Applicants have got a number of choices here.
They 6
can go for an exemption under 50.12, is it?
They can go to 7
- 50. 4 7 (c) and say interim compensating measures or other 8
compelling reasons for plant operation -- I think that's 9
in that regulation.
10 They haven't done those things.
Under (d), I 11 am forced reluctantly to agree with Chairman Rosenthal, they 12 can probably file some sort of utility plans and say these
({
13 are it.
And, at that point we would be stuck unless we can 14 think of some more ingenious arguments in the next go-around.
15 But, none of that has been done.
And, in the face 16 of that, the Licensing Board here has simply not applied the 17 regulations.
18 JUDGE ROSENTHAL:
So that all this comes down to 19 is that the utility could have avoided the problem which you 20 say it now has by simply handing to the Staff something that 21 was labeled up at the top " Utility Plan for Emergency Re-22 sponse in the Commonwealth of Massachusetts?"
23 Had it done this, no matter what the plan had 24 said, no matter whether the Staff looked at it or not, 25 that would have satisfied the 50.33(g) requirement?
l
30
~
1 MR. BACKUS:
No.
JUDGE ROSENTHAL':
Oh, it wouldn't?
2 t
I l
3 MR. BACKUS:
No.
4 JUDGE ROSENTHAL:
Then, tell me why it wouldn't 5
have under your interpretation of"the --
(
6 MR. BACKUS:
I agree with.part of your question, 7
Chairman Rosenthal, the part that under the present situa-8 tion it appears that the Staff does not have to look at it, 9
FEMA does not have to look at it.
But, I don't think they 10 could do something -- I think the Applicant -- I think i
11 everybody, and particularly an Applicant, has a duty to 12.
comply with the Commission's rules with a degree of good 13 faith.
14 In filing a plan that says Paul Revere will carry l
15 the message is not --
16 JUDGE EDLES:
We've got Paul Revere at one end, 17 we've got the Shoreham plan which presumably was enough of 18 a good faith effort by the utility to go forward with, and 19 I thought we would all concede that if that was the type, m
that huge utility plan, if that was the kind of thing to file 21 that would totally be in good faith.
l 22 So, really what we are talking:about is, at what 23 point, where on the spectrum now do we draw the line on good 24 faith?
I don't disagree with you.
I mean, I think, yeah, 25 on one line they are'saying in the event the Commonwealth of i
31-1 Massachusetts doesn't do anything, here is what we would do.
\\
And they give you a paragraph, yeah, you,could probably kick 2
that-out as, you know, n,ot being a good faith effort to 3
4 comply.
5
-But, as you move up the spectrum, at some stage 6
you would have the utility plan, maybe at the 10-page stage 7
or the 25-page, or I don't know, where you would say:
All 8
right, you know, it may not be perfect but everybody agrees 9
we don't have to review it yet.
I mean, in due course we 10 will decide how good the plan is.
But,'you know, it's 11 enough to pass muster here in terms of being a genuine plan,-
12 not a sham.
13 MR. BACKUS:
Yeah, I agree.
There is some point 14 there that at somehow there may be a way to get some' judgment 15 on somewhere.
But, we don't have any pretense here.
We 16 don't have any pretense.
17 And, yet the utility has been_ telling us that they 18 are working diligently, that that is one of the two routes 19 that they are going to try to pursue to overcome Governor N
Dukakis' position for the Commonwealth.
The other, of course 21 is the attempt to shrink the emergency zone', which is not 22 relevant here at all.
23 I would like to say this,.it seems to me that 24 the Commission Shoreham decision does not foreclose this case 25 In fact, in some respects I think it's quite helpful.
In the
32 1
Shoreham case, they did have the utility plan and the
_/
2 Commission could sort of turn to that and say:
Dear 3
Licensing Board -- and I guess they said the same thing to 4
you, because I think you upheld the Licensing Board --
5
Dear Licensing Board,
Dear Appeal Board,
there is a utility 6
plan here which may be found acceptable.
7 It seems to me in Shoreham, the Commission was 8
putting some emphasis on the existence of a utility plan as 9
providing some degree of assurance, even though Governor 10 Cuomo said he wouldn't implement it.
They said it could be 11 found a basis for some implementation.
12 I think the Shoreham case is actually, in that
(~N 13 respect, helpful.
I -- I'm sorry.
V 14 JUDGE EDLES:
That's true, that the Commission 15 wasn't focusing on the 50.33(g) question which we have be-16 fore us.
I mean, they weren't asked, by the way, what --
17 if the plan had yet been tendered.
And, I don't really 18 know.
Had it'been tendered at the time the Commission 19 issued its decision?
Or, did it come in later?
m MR. BACKUS:
It had certainly been tendered by 21 the time of the most recent Commission decision.
22 JUDGE EDLES:
Most recent meaning when?
23 MR. BACKUS:
What is the one?
The one where --
24 JUDGE EDLES:
In '83, I guess, when the Commission 25 issued that decision, had the plan physically been tendered?
33 1
Or, was the Commission saying, in essence, is the utility b
N%/-
2 plan likely to come in and as a consequence you can.go ahead 3
and issue the low power license?
4 MR. BACKUS:
I just don't know when that happened, 5
when the LERO so-called plan was submitted in that case.
6 JUDGE EDLES:
You know, if it was submitted after, 7
then one might well read the Shoreham opinion to mean that 8
even if the plan wasn't on file that if you knew the state or 9
local governments would file a plan, or if they didn't the 10 utility would make an effort to file an alternative, then the 11 Commission would essentially even have spoken to the 50.33(g) 12 issue.
()
Maybe we had just better find out the timing of 13 14 the Shoreham submission.
15 MR. BACKUS:
Well, it's information I don't have.
16 JUDGE EDLES:
Okay.
17 MR. BACKUS:
I would like to say this basically.
18 If the Commission is going to say that the Shoreham decision 19 means that 50.33(g)- is pro tanto modified in the way that 20 some of the fuestions here have suggested, let's have the 21 Commission do it.
I asked this Board to enforce the regula-22 tions.
23 And, I'll.tell you why that sticks in my craw, 24
~ gentlemen.
When we are up trying to get contentions admitted
[
25 before your Licensing Board, where we fail far more often
T 34 1
than we succeed, the first thing we are hit with is:
You 2
haven't alleged the violation of a regulation.- It-doesn't i
3 do us any good to slide around the regulations and play i
4 original intent like Attorney General Meese does with the 5
Constitution, I'll tell you that.
6 We get hit with the regulations as written.
- And, 7
if this is going to be an even-handed legal process before 8
this Agency, I think it has got to cut both ways.
- And, 9
if it's going to be the commission that's going to come in 4
10 and say:
Well, 50.33 really should have been amended when 11 we put in the opening for no review until we get above five 4
12 percent, let's have the Commission do that.
13 And, let's have this Board order the matter 14 handled in accordance with the regulations as they exist.
I 15 think a lot of attention has been paid to where these regula-l 16 tions go in.
And, I must say I think that's the way it end Tl 17 should be.
18 JUDGE EDLES:
I just have one other question.
19 50.33 is called " Contents of Applications, General Informa-20 tion."
And then it says when you get around to'(g), if an 21 application is for an operating license for a nuclear power 22 reactor.
What I'm asking is, why couldn't I literally read that word'" operating license" to mean full power?
23 24 In other words, that would be -- I would assume 25 you are reading it literally but when I see that word
,. ~. _ _,
...--.,c
,sy,-
w,, e
,.-...-e,
-.et
--w,
.,~,,.-.-.....w
-c--rnm n r.-
,,---,sr,
35 1
" operating license" I know what that means in our jargon.
It A
2 means a full power license.
3 And, that's different from when the Commission 4
in, I guess, 50.47 uses the term " operating license" for 5
something less than five percent.
I mean, that whole 6
phrase is a term-of-art which is different from the word 7
" operating license."
8 MR. BACKUS:
Well, I don't as it is.
I have 9
always understood this Commission had two licenses, con-10 struction permits which were passed, and operating licenses.
11 And, what you get under 50.47 is an operating license for 12 40 years, limited to five percent power.
And, you can use
{
13 the exemption of 47(d) to do that.
14 I don't understand it to be any other license.
I 15 don't understand it to be such a thing, although the press 16 uses it, as a no power or low power license.
Those are just 17 shorthands.
18 What we've got here is an operating license.
- And, 19 Ms. Sneider was perfectly correct, the utility has been beat-
'M ing the drums in New Hampshire real loud about the fact that 21 they have got a 40-year operating license with just a couple 22 of minor conditions yet to be handled.
23 JUDGE ROSENTHAL:.Thank you.
Mr. Dignan.-
24 MR. DIGNAN:
Mr. Chairman, members of the Board, I 25 would like to begin on one subject.
I think, in many ways,
36 1
this discussion of 50.33(g) is one of timing.
And then the Cm/
2 question that the Chairman addressed and that Mr. Edles e
3 addressed.
4 To begin with, this license has not been issued 5
under 50.47(c).
The license is issued pursuant to 50.57(a).
6 Those are the findings required for an operating license in 7
this Agency.
8 As we pointed out in our brief, they don't require 9
a finding that the application-is complete., That-is not to part of the finding for an operating license, whether it be 11 a hundred percent or be low power.
12 The other point that I think is being lost here 13 by my brethren representing the Commonwealth and SAPLeis that 14 an application-before this Agency has always been a living, 15 breathing document.
The only-timing factor that works on 16 50.33(g) or any other of the provisions in the regulations 1
l 17 saying what the contents of an application must be is that 18 the Staff must be satisfied that the application is suffi-19 ciently complete to be docketed.
s There is no other rule that says an application 21 has to have certain contents in it by a certain time.
22 JUDGE EDLES:
.Mr. Dignan, in your experience, 23 does the Staff docket applications which do not contain 24 off-site emergency plans?
25 MR. DIGNAN:
They docketed ours.
And, they i
f
37 1
docketed, I believe, o thers.
But, I would rather the Staff O'.
2 address that,,because I don't pretend candidly to have a 3
full knowledge of every application that is in.
4 However, keep in mind.that ours was docketed 5
with our emergency plan in it.
But, there certainly was no 6
state and local plan.
7 JUDGE EDLES:
You mean, the so-called on-site 8'
9 MR. DIGNAN:
Right, that's correct.
10 JUDGE ROSENTHAL:
What is the significance of 11 subsection (g) in that circumstance?
12 What you are telling me is that it's not neces-(}
sary to include, when the application is filed, the emergency 13 14 response plans that are referred to in subsection (g)?
T 15 The section then basically is meaningless, isn't it?
16 I mean, when you talk about an application, I 17 would have thought that that's the document that one files 18 seeking certain relief.
Now, you say, well, all that you 19 need to have is the Staff decide that the application'is 20 sufficiently complete to be worthy of docketing.
21 Can the Staff do that just on a cover page?
Or,
~
.I 22 is there some kind of standard that governs --
M MR. DIGNAN:
No.
Presumably, the Staff has 1
24 higher standards than a cover page, and they certainly do, 25 because they certainly give an application, as required by
. - _ ~,
38 1
the regulations, that preliminary review before they permit
\\m) 2 the docketing.
The point --
3 JUDGE ROSENTHAL:
Well, what is the standard?-
~
4 Maybe I ought to ask that --
5-MR. DIGNAN:
I think -- yes, in fairness, I think 6
you will have to ask the Staff, because I cannot ---I can 7
articulate for you an Applicant's lawyer's point of view of 8
how complete it has to be when it gets down here, but I 9
can't. speak for the Staff on what they deem complete.
10 But, I would point out, Mr. Chairman, as we did 11 in our brief, that is being lost sight of by my friends 12 arguing the other side of this cause is an NRC application l {
13 is always a living, breathing thing.
Indeed, after you l
14 receive your license you must update your FSAR, which is 15 part of your application.
16 JUDGE ROSENTHAL:
I don't have any doubt about 17 that, Mr. Dignan.
But, that doesn't necessarily mean an 18 application is sufficiently complete to enable the issuance 19 of a fuel loading license when, as of that time, a major 20 component part of the application has still not been filed.
21 That's the argument, as I understand it --
22 MR. DIGNAN:
I understand --
2 JUDGE ROSENTHAL:
-- of your opposition.
It's 24 not necessarily that the day you filed the application you 25 had to have all of this in there.
But, they are saying:
My
39 1
goodness, here is subsection (g).
It requires the applica-2 tion to have state and local response plans.
And, you may 3
not need them in there at Day One, but before you get any 4
kind of a license you have to have it.
5 Now, if that's not the case, then I ask you, what 6
is the import of (g) if, in fact, you can have fuel loading 7
pre-criticality testing, I suppose you would even argue five 8
percent testing, without any compliance with (g) at all?
9 MR. DIGNAN:
Well, I think, first of all, if you 10 read the -- at the time 50. 33 (g) was put in, the Commission 11 was anxious that the plans come in for Staff review, and it 12 had that purpose.
(
13 Secondly, it may well be that a Staff reviewer --
14 and if we ever have another application for an operating 15 license in this country -- will look at it and say:
No, 16 that's not complete enough.
We won't take this one for l
17 docketing until it's in.
That's the Staff's decision, and 18 with all due respect it's not this Board's decision.
The 19 Staff decides whether the thing is complete enough to docket 20 and goes from there.
21 And that -- and the point I keep coming back to, 22 Mr. Chairman, is the license came down under 50.57(a), and 23 we have quoted it in our brief completely.
There is no 24 required finding of a complete application.
M What the finding must be is that you will operate
40 1
in accordance with the application as it exists.
And, as 2
I point out there, this wasn't designed to put teeth in it 3
except teeth beyond the regulatory requirement of the regula-4 tions themselves, and that you will operate that way.
5 JUDGE ROSENTHAL:
Let me test that theory, if I 6
may.
Let us take the extreme case.
In comes the applica-
?
7 tion, and the application has got a cover page.
And, the 8
Staff, in its infinite wisdom, decides that's complete 9
enough.
And, the Staff then is perfectly prepared to issue 10 a five percent operating license.
1 11 Now, are you telling me that a Licensing Board 12 is just powerless to do anything about it?
13 MR. DIGNAN:
Well, keep in mind, what would happen 14 in that situation, if it was nothing but a cover page, there 15 would have been a million contentions about there is no ECCS, 16 this isn't right, this isn't right, this isn't right.
All' 17 those issues would be up before the Licensing Board.
The 18 application would come in under 50.57(c).
The Board Chairman 19 would read the application for the low power license, say:
2 I'm sorry, there are 1500 contentions up here that are un-21 resolved.
You can't have your low power license.
22 The 50.33(g) situation doesn't work that way, 23 because of the existence of 50.47(d).
And, that's what we 24 are here to talk about.
And, to literally read 50.33 (g) the 25 way they wish to is to throw out at least 20 years of history i
_.-. _, -,,...,,. _, _. ~..,
,,r...
41 1
in this Agency of what the concept of the application was, rm i
\\
'N.J 2
that it was a changing thing.
Indeed, there are cases that 3
view the application -- it used to be a requirement, 4
remember, the application had to be tendered into the record.
5 That has been removed from the regulations.
And, at that 6
time they used to say the on1v thing the Licensing Board does 7
really is go over that application to see if things are there 8
that should be.
9 Secondly, as the Staff pointed out in their brief, 10 the Commission itself has stated it has never been the rule 11 that every safety regulation -- I guess we can agree emergency planning is a safety situation -- has to b'e complied with in 12
(~~N 13 order to have a low power license.
\\~,1 14 And, as poon as one focuses on what the applica-15 tion is and what it is not, I really respectfully suggest 16 this literalist argument goes down the drain.
17 Secondly, as we point out in our brief, there has 18 been a fast reading of what 50.47(d) says.
- 50. 4 7 (d) doesn't 19 only say there doesn't have to be a review of the plans; it 20 says there doesn't have to be a review or determination of 21 the status of off-site preparedness.
And, as we point out 22 in our brief, that's set forth in the disjunctive from the El plans themselves.
(~T 24 Now, if the Commission's regulations say you i
N
~
Zi don't even have to look at the status of off-site preparedness,
42 1
then what on earth -- how on earth can you argue there has 2
to be a plan lying around on the table someplace?
3 JUDGE ROSENTHAL:
Well, now let's look at' Issue 6 4
that I referred to previously.
5 MR. DIGNAN:
Yes, sir.
6 JUDGE ROSENTHAL:
Now, I would have thought under 7
that reasoning that the Commission's response to Issue 6 8
would have been simply.that off-site emergency planning is 9
a no-never-mind until you get beyond low power testing.
10 Instead of that, the public is assured that, in 11 point of fact, even for fuel loading the NRC is going to 12 review various off-site elements of the Applicants' emergency
()
13 plan.
Now, that seemed to me to be difficult to reconcile 14 with the notion that you just don't worry about off-site 15 emergency planning prior to the -- beyond five percent 16 operation.
17 MR. DIGNAN:
Mr. Chairman, because the Board was 18 kind enough to warn u's on this issue, I have a fairly de-19 tailed exposition on that question.
And, with your permis-M sion, I will go into it at this time.
21 First of all, everything I have said before, and 22 said in our brief, I do not think is affected by this 23 legislative or administrative history, whichever term one 24 uses.
First of all, the answer to Issue 6 by the Commission 25 cannot mean that the Staff has got to review any off-site
43 1
state or local emergency plan, because the reference in 2
there is to the Applicants' emergency plan.
And, I think 3
that fairly clearly is the so-called on-site-plan.
- Indeed, 4
we have a copy of it here with us in the hearing room now.
5-The Memorandum of Understanding between FEMA and 6
NRC is interesting on this point also.
That Memorandum does 7
not contemplate reviewof off-site plans by NRC, but rather 8
this effort is to be conducted by FEMA.
And, so clearly the 9
Commission was talking about NRC review on that issue,_and to they couldn't have meant review of a state or local off-site 11 plan.
This is' clear when you look at Paragraph 2.1 under 12 the heading " FEMA" in the Memorandum of Understanding of '85, 13 for example, which carries on in the same concepts as were 14 in existence back then.
15 It says:
FEMA is to review and assess off-site 16 plans.
And, then you go to Paragraph 2.1 under NRC, and it 17 says:
NRC is to assess licensee emergency plans for ade-18 quacy.
19 So, it --
20 JUDGE EDLES:
But, Mr. Dignan, then I look at 21 some of the elements that are included there, and those are i
22 not Applicant elements.
23 MR. DIGNAN:
They are.
Every one of them are,
(*
24 sir, at some point.
\\
25 JUDGE EDLES:
All right.
Explain to me then,
1 44 1
provisions exist for prompt communication among principal
\\ss 2
response organizations to emergency personnel and to the 3
public; how is that an Applicant type of emergency proce-4 dure?
5 MR. DIGNAN:
I don't know how far the Board is 6
going to let me go on this, because one of the difficulties 7
I was going to point out is,. this question was raised here-I 8
and now.
And, no record was put in below, because it wasn't I
9 raised below, the effect of this.
What wasn't raised below?
10 JUDGE ROSENTHAL:
11 MR. DIGNAN:
This question of whether this legis-1 12 lative history has an affect.
In other words, I was somewhat f
13 troubled when I heard of the Board's question.
And, I don't
{
14 know whether my Staff brethren shared this or not,.as to 15 whether the Board was raising strictly a legal-question here 16 or, in part,.a factual question.
That is,to say, has.the i
17 review taken place of these elements.
18 JUDGE ROSENTHAL:
No, no.
19 JUDGE EDLES:
No.
2 JUDGE ROSENTHAL:
No.
We are raising strictly a 21 legal question.
We are not going to raise factual questions j
J 22 that have not been addressed.
23 JUDGE EDLES:
All I was driving at here is -- I 24 understand the language.
I.mean, I agree.
I read it, it 25 says, you know, the NRC Staff will review the following
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-45 1
off-site elements of the Applicants' emergency plan.
- And,
(\\ -
2 I agree.
I understand what that means.
3 MR. DIGNAN:
And, when youl review one of these 4
plans, in them are, as the Chairman indicated in his colloquy 1
5 with the Commonwealth's Attorney, you 'will find in there 6
provisions of that plan for notification to people, for 7
notification to the Commonwealth, for notification to New-8 Hampshire, and between and among emergency broadcast systems, l
9 things such as the content of message and so-forth.
10 And, this'is what is referred to by the Commission, i
11 And, I think this is clear when one focuses on the fact that e
12 in the footnote to the Notice of the Proposed Rulemaking, N
! {}
13 which gave rise to this discussion of Issue 6, the Commission i
14 said:
"The NRC will review only those-elements under each 15 of the planning criteria that are essential for determining i
16 the licensee's (not state and local agencies) preparednes s.
i 17 And, what the Commission was talking about in 18 that Issue 6 is, has the Staff reviewed the licensee's on-site i
j 15f plan to be sure that they have the provisions in there for i
j 20 notification?
For example, the Staff requires us, low power 21 licensees, to have the siren system operative and so forth.
22 And, it is this kind of thing we are' talking about, 23 While you can grab that language and say:
Gosh, this looks l
l 24 like something that must happen somewhere away from the site, 25 it.in fact does not, i
46 I
For example, there is a provision in there x/
2 called the monitoring provision.
All of that monitoring is.
3 done by Seabrook people.
It is monitoring that is done in 4
the site, and projections are made as to where doeses are 5
going.
6 And, it is these elements of the plan that -the i
7 Commission was concerned with.
8 JUDGE ROSENTHAL:
But, these have off-site 9
implications, because the public isn't --
10 MR. DIGNAN:
No question.
11 JUDGE ROSENTHAL:
-- directly involved with what 12 happens on the site.
{ ()
13 MR. DIGNAN:
That's correct.
14 JUDGE ROSENTHAL:
I mean,.the public is --
l 15 members of the public are presumably off-site.
16 MR. DIGNAN:
That's correct. -And, as I under--
17 stood that answer, the Commission is.saying -- remember the 18 i
question that was put to the Commission specifically was, 19 isn't the public going to be upset about a low power opera-4 N
tion when there is "no plans?"
21 And, what the Commission was saying is that the 22 -
public can take some comfort from the following.
And, it was 4
i 23 pointing out that certain off-site matters such as notifica-24 tion and so forth were contained in the Applicants' plan and 25 would be reviewed by the Staff.
3 e
47 f
1 JUDGE ROSENTIIAL: Why' if the basic position of the N/
2 Commission is that the public need not be concerned about m
3 fuel loading and low power testing, didn't the Commission 4
provide this kind of answer?
I mean, again I would have 5
thought the answer would have been simply: Public, not to 6
worry.
Your friendly Nuclear Regulatory Commission is tel-7 ling you that until you get above five percent, there is no 8
reason for any member of the public off-site to be concerned.
9 Instead of that, you get this.
10 MR. DIGNAN:
No, what you got was a specific I
11 question.
The question wasn't, is the public going to be 12 hurt?
The question was -- if I'm correct in my recollection 13 of it -- the public will be upset and up tight that the 14 plans aren't in place.
15 JUDGE ROSENTHAL:
When you say the --
16 JUDGE EDLES:
I think that is essentially correct.
17 MR. DIGNAN:
And, the Commission was answering 18 that question and saying:
Well, if they are upset they can 19 remember this.
They can remember that we'are going to review 20 these elements in the Applicants' document.
21 And, I think it was a perfectly legitimate answer.
22 The other thing to keep in mind is that in the course of.that 4
23 dissertation, the di~ssertation that preceded the discussion 24 of the issues, the Commission made clear that to the extent 25 the Commission was concerned with off-site protection at all -
l l
_, _, _, _., _,,,. _ _ _. _. _.,. _.. _... _ ~,, _. _.
48 1
and I quite agree with you, Mr. Chairman, that I think the
~
f 2
basic Commission position was off-site, you don't have to 3
worry.
To the extent they gave it any -- was the public near 4
the site?
This appears at 46 Federal Register 61133.
5 And, if you are talking about near the site at 6
Seabrook, I would recollect to the Board, near the site we 7
haven't got a problem.
We have got a plan.
I mean, two 8
miles out from that site is where the Massachusetts border 9
begins.
Nobody argues that the New Hampshire plan isn't on 10 file.
11 So, as a practical matter in Seabrook's case, I 12 think any policy consideration that the Commission might have
(' ~',
13 had in mind is taken care of.
I don't think they had one.
Q,)
14 I think the literal answer was given to a question of 15 psychology, if I could be so bold, and they answered it as 16 best they could.
17 Finally, the -- now that I have been advised by 18 the Board that no factual question of whether Staff review 19 has taken place or that the stuff is in the plan, I will N
cease from that.
21 Finally, I think as a matter of record, it should 22 be made clear -- because there have been suggestions of a 23 factual nature from my brethren that there is no plan and 24 there is nothing out there in the public -- it can't be 25 forgotten that Massachusetts already submitted a plan to
49 1
FEMA for informal-review in the case of Seabrook before all
.(~
\\s) 2 the action took place.
Now, that's sitting over there on 3
my desk.
So that_the planning that is in the on-site plan 4
by the Applicant wasn't done in some~ kind of a vacuum.
5 JUDGE EDLES:
Where is that plan?
What happened 6
to it?
What has FEMA done with it?
7 MR. DIGNAN:
Right --
8 JUDGE EDLES:
I mean, other than it's sitting 9
on your desk, where is it officially?
[
10 MR..DIGNAN:
I will tell you exactly.
FEMA gave 11 it a full " informal review."
It was sent back to Massachusett s J
12 with suggestions.
It was corrected, and that's the corrected 13 version that is --
14 JUDGE EDLES:
Is it still on -- is the plan still 15 on file with FEMA or is it --
i 16 MR. DIGNAN:
It's not officially on file with 17 FEMA at all.
I understand they have a process called j
1 18
" informal review."
Now, apparently you can send 33 copies 19 down there and --
i 10 JUDGE ROSENTHAL:
Has the Commonwealth withdrawn 21 the plan?
22 MR. DIGNAN:
I'm sure the Commonwealth's position 23 would be that, under the FEMA regulations, they have now 24 withdrawn all plans.
I would concede that.
i 25 JUDGE ROSENTHAL:
Well, the plan is of no
50 1
significance if that --
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\\
2
. MR. DIGNAN:
No,.no.
I keep coming back -- the s-3 reason I raise it, Mr. Chairman, is this.
When you come 4
back into the context of the way the Commission was answer-5 ing that Issue 6, I am saying that the public should not be 6
. mislead-into thinking there is nothing done.
7 The other thing to keep in mind, as a matter of 8
record in this Agency which I can talk about, is Massachusetts 9
has a generic plan on file here, and approved, for three 10 i
reactors.
And, part of that, the coramand and control function, 11 is a-generic plan for the entire state.-
12 And, then there are specific-chapters for Vermont 13 Yankee and Rowe.
And, one of the reasons we have the 14 dedicated line available is you can't pull it.out if you are lo mad at Seabrook because the dedicated line serves two 16 operating stations into the police station.
17 Now, I think these things are important, because 18 this is a reality type of argument we've got-here.
And,-in 19 fact, the Chairman hit it perfectly. 'The basic argument that
(
m ~
is being made to you, whether they want to admit it or_not, 21 is if we had picked up a notebook -- and, let's forget Paul 22 Revere, and I'm sorry I started it in my brief, but I didn't 23 say Paul Revere either -- and knowing Mr. Edles comments 24 the last time I was here about that.'s -baseball, I've learned V
25 to avoid being too colorful.
51 i
1_
But, the fact of the matter is --
2 JUDGE EDLES:
I'm surprised'at you mentioning the 3
subject of baseball, frankly.
4 (Laughter.)
5 MR. DIGNAN:
That's mean.
That's very mean.
~6 But, the fact of the matter is, had we walked down here with 7
this and its companion volume, which has got the logo of 1
l 8
the Commonwealth on it, and passed it in here -- and, it's t
9 a pretty good plan, as a matter of fact'--
1 I
10 JUDGE EDLES:
This, meaning that, the original 11 off-site plan, that had been tendered earlier?
I 12 MR. DIGNAN:
Yes.
If we had dumped this in here 4
13 on the docket, as I hear them, let's forget whether-it's-14 one page or what, it certainly will satisfy Mr. Edles that 4
15 it's a good faith effort.
The. case is over.
16 So,-for the want of having dumped 33 copies of 17 this, or whatever the magic number is these days.down here, i
18 they want a different result.
I 19 Well, if the Board is persuaded by that, I suggest m
the Board withhold its decision for'five days, we will print 4
1 21 33 copies and mail it down here.
And, that will end the 22 problem.
i
.e M
I think it's a waste of pulp and paper.
I think-l 24 it's probably -- the NRC, I know, has space problems.
- But, i
i M
we will do it.
It's an absurd argument.
t l
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52 1
JUDGE ROSENTHAL:
Let me ask you this question.
s
\\-)
2 You may not be in a position to answer it, but I'm just 3
sort of curious as to whether, given Massachusetts' current 4
position with respect to emergency planning, this utility is f
5 contemplating following the lead of LILCO in supplying its 6
own utility plan?
7 MR. DIGNAN:
The utility has announced -- let me 8
approach that with a little bit of history, if I might.
9 One of the reasons something wasn't dumped down 10 here is, keep in mind, we were told all along they are work-11 ing on it.
We were told that for a'long time.
And, then 12 the decision was made.
And, here we are, f']
13 Yes, there is work being done in that area.
There 14 are other avenues being explored.
And, I can assure the 15 Board that there are probably many interesting legal argu-16 ments that are going to be heard in Seabrook yet.
The 17 intention of this utility is to license this plant at a 18 hundred percent of power.
19 And, the instructions that counsel have been given, M
and the engineers have been given, is to do what it takes to 21 get it done.
If that means designing a new plan, if'it means 22 fighting through an exemption to this regulation, if it means 23 attempting to get this regulation changed to take into ac-(~3 24 count the realitics of the Seabrook containment, the utility i
s
\\_J 25 Will do it.
53 1
JUDGE ROSENTHAL:
I'm not so sure that I got the
(
x
\\~
2 answer, or maybe I didn't understand the answer.
The utility 3
is planning to put up its own plan?
4 MR. DIGNAN:
The utility is working on the plan.
5 As to what route the utility will take in light of the 6
Governor's position, I am -- and I'm not playing games, I 7
don't even know.
It's under discussion.
8 There is obviously the possible route of a LERO, 9
as the phrase has gone; there is the route of the exemption; 10 there is the route of attempti~ng to modify the regulation.
11 And, maybe all three.
And, there may be other routes that 12 I haven't thought of'yet.
13 But, there is actively work going on now with
(}
14 what the -- the term they use is the alert plan, up there.
15 JUDGE ROSENTHAL:
I think your time has expired.
16 Mr. Perlis.
17 MR. PERLIS:
Thank you, Mr. Chairman.
Good 18 morning.
19 I won't go into a long recitation of what's N
already in my brief.
I would like to stress one fact before 21 this Board, and that is that there is really no safety 2'
question involved in this appeal.
23 The-Attorney General, in his brief and here at
(\\,
oral argument, has really askewed any claim that there is 24 s
'm )
25 any safety significance whatsoever --
i
?
54 1
JUDGE ROSENTHAL:
What, if I may ask, is the 2
relevance of that statement?
I think that your opponents m,
3 are quite correct in suggesting that we have a responsibility 4
to enforce the Commission's regulations whether or not there 5
is an immediate safety implication involved or not.
6 Now, I'm not really interested, Mr. Perlis, in 7
whether or not there is an immediate safety question.
What 8
I'm interested in is whether the Commonwealth and SAPL are 9
correct in their view that 50.33(g), properly interpreted, 10 stood in the way of licensing this plant.
11 MR. PERLIS:
Well, there are two things.
And, I 12 think it's important for both that we realize the basic --
( ~
13 a fundamental premise is that there is no safety question.
C/
14 One of them is the Commission's teaching in the 15 Shoreham proceeding throughout, and especially in CLI 8421 16 which was cited in the Staff's brief.
In that decision, 17 the Commission, it seems to me quite clearly, upheld the is proposition that where there is no safety significance to 19 a regulation at low power operation -- the Commission was 20 referring to GDC 17, although the Commission also referred 21 to Appendix -- to the part of Appendix A to'Part 50 in which 22 turbine missiles were involved, because the turbines wouldn't 23 be turning at that stage of power, you didn't have to comply 24 with the requirement, that you could deal with turbine missile 25 generation.
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55 1
The Commission in 8421 made it quite clear that
\\/
2 where regulation has no safety significance at low power 3
operation, that that regulation need not be complied with.
4 In fact, it doesn't apply at all to low power operation.
5 JUDGE ROSENTHAL:
You are telling us that even 6
if this regulation, on its face, required the submission of 7
state and local plans or utility plans in lieu thereof be 8
filed prior to the issuance of any kind of license, that 9
because there is no safety issue involved we would be justified i
10 in ignoring that command?
11 MR. PERLIS:
No, I'm not saying that, because the 12 other point of the Commission's decision was it intended its 13 regulations to be read in such a way as to enhance both 14 efficiency and flexibility.
In the case where a regulation, 15 clearly by its terms applied to low power operation, where, 16 for instance, it said before any license could issue, you 17 must submit plans.
And, clearly that regulation could not 18 be read in a flexible way.
19 50.33(g) does not say that.
4 M
JUDGE ROSENTHAL:
Now, does the Staff -- the 21 Staff interprets 50.33(g) as meaning that as long as these 22 plans come in before,the plant is ready to go above five 1
23 percent, time enough; is that right?
24 MR. PERLIS:
The Staff does not view 50.33(g) at 25 all as a timing requirement.
The timing requirement is
56 1
50.47(d).
Until plans come in, have been reviewed and pg s-
'2 approved by the Staff'and FEMA or some exemption is. requested 4
3 and has been approved by_the Staff, a license for greater 4
than five percent power cannot be issued.
5 When the attempt is made to demonstrate compliance 6
with that' regulation is-in the hands of the utility.
7 JUDGE ROSENTHAL:
All right.
When the Staff gets 8
the application ab initio, what's the standard that it-9 employs in determining whether the application is complete i
10 enough to justify docketing?
11 MR. PERLIS:
I can't answer the question in terms-12 of a hard and fast standard.
I believe the standard is one
}
of whether, given the nature of the application, it is now 13 l
14 worth the Staff time and resources to begin reviewing the
{
15 application.
16 It's a' question of judgment depending upon what 17 is submitted.
18 JUDGE ROSENTHAL:
Well, I take it that -- from 19 your argument -- the Staff would regard the absence of i
M off-site emergency response plans as being insignificant at
~
21 the time that the application is filed?
22 MR. PERLIS:
In terms of docketing an application, 23 I believe that's correct.
I' haven't worked on that many 24
-applications, but I've worked on a number where off-site 25 plans were not submitted until far later than the original 1
57 1
docketing of the application.
\\~j 2
JUDGE EDLES:
What about the Shoreham litigation?
3 Was the utility plan, do you know -- do you know, had it been 4
tendered at the. time the Commission issued its decision?
5 MR. PERLIS:
The Shoreham case really is 6
sui generis.
My understanding of Shoreham is that the 7
Shoreham Applicants had submitted a plan for suffolk County
)
8 that was the Suffolk County plan.
9 Suffolk County then came in and said:
I don't 10 know why you submitted our plan, because it's not our plan.
11 We are not going to live up to it.
12 The utility then said:
We will then revise the
(~N 13 plan to indicate that LILCO employees are going to be per-
\\)
~
14 forming the functions set out in that plan.
And, the LERO 15 plan, as I recall, was based substantially on the original 16 County plan.
17 JUDGE EDLES:
But, help me out now.
The timing --
18 so, all of that happened and then when-the Licensing Board 19 and the Commission spoke, my question is, were they speaking 20 in terms of the anticipated tender of a plan, or had dhe 21 plan actually been docketed with the Staff or whatever term-22 of-art you use?
23 MR.' PERLIS:
The County plan had previously been
("}
24 docketed.
I'm not -- I can't answer your question.
25 JUDGE EDLES:
That's like the Massachusetts plan.
58 1
MR. PERLIS:
I can't answer your question.
I-2 just don't remember when the utility plan came in.
It was 3
within six months of that time frame, one way or the other.
4 JUDGE'EDLES:
It's not clear from those Opinions 5
whether they are talking about -- I mean, this is an 6
operative fact.
I mean, we ought to be~able to figure out 7
the time here, you know.
8 MR. PERLIS:
I don't believe the Opinions turn 9
at all on whether the plans had been submitted.
It was 10 clear from the statements the utility had made on the 11 record, echoed in the Licensing Board's decision cited by 12 Massachusetts, that plans were going to be coming in, that 13 a revision was going to be made.
14 And, that revision was changing from the Suffolk 15 County plan to the LERO plan.'
I don't know when the revision 16 itself was made.
17 But, I don't think that it --
18 JUDGE EDLES:
Well, you may be right, that it is 19 not relevant.
What do you think is the operative significance 20 of 50.33(g)?
21 MR. PERLIS:
I think the operative significance
)
22 of 50.33(g) was really two-fold.
And, both relate back to 23 when it was adopted.
It was adopted with.the substantive 24 requirements of 50.47.
Prior to that time, all you had was an Appendix E to Part 50 for emergency planning.
- And, 25 i
i
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59 I
off-site plans were not always reviewed by the Staff.
They 2
would be reviewed if the state or local government asked the 3
Staff to look at them.
Otherwise, the Staff did not look at 4
them.
5 I think 50.33(g) indicates two things.
First of 6
all, that the Staff, as does 50.47, or the Staff u d FEMA, 7
are going to be looking at.off-site planning now as part 8
of the regulatory requirements.
And, secondly, that the 9
obligation is upon the utility, not the state and local
'10 governments, to tender those plans to FEMA and the Staff.
11 I don't think that 50.33(g) sets any substantive 12 emergency planning requirements.
Those are found in 50.47 anci 13 Appendix E.
And, it is the Staff's position that those are 14 the requirements that must be complied with.
And, 50.47 and 15 Appendix E both make clear that no off-site findings relat--
~
16 ing to off-site plans are required before license greater 17 than five percent power can be issued.
18 Without repeating again everything in our brief, 19 the Staff position is really based on three arguments.
The 20 first is, as I've just stated, that the substantive require-21 ments'are those that the Staff looks at to assure that the 22 public health and safety are protected.
And,-those require-23 ments are all set out in Appendix E and in 50.47.
They are
..]
24 not in 50.33(g).
25 Nothing -- second, there is nothing in the
60 1
legislative history that indicates that the Commission ever 2
intended 50.33(g) to require plans when they were not needed
's 3
from a safety standpoint.
50.33(g) was put in when the 4
Commission determined that plans were required from a safety 5
standpoint.
The Commission later determined that those 6
plans were not required from a safety standpoint before 7
five percent power was exceeded.
8 And, finally I think the Commission's decisions 9
in the Shoreham proceeding clearly indicate that off-site 10 emergency planning need not be resolved before low power 11 licenses may issue, and that those regulations without 12 safety application to low power operation should not be
(~'N 13 strictly applied to that level of operation.
'.)
14 I would also like to address a couple of points 15 that opposing counsel have made.
Counsel from Massachusetts 16 pointed out that Massachusetts has some requirements in
?7 their environmental regulations that a certain application 18 need be complete before any review starts, or before a 19 license may issue I believe was what she said.
20 The NRC does not havc a similar regulation.
There 21 is nothing in our regulations wh' require the formalistic 22 tendering of a plan before a license may issue.
But, there 23 is something in our regulations which require that that plan 24 be apprcved before a license greater than five percent may 25 issue.
61 1
The Licensing Board's Shoreham decision combin-
/^N
\\x s' 2
ing 50.33(g) and 50.47 (c) I think stands for the proposition 3
that 50.33(g) is meant to be read in concert with 50.47.
4 And, if it's read --
5 JUDGE EDLES:
My problem with that is that when 6
it got up to the Commission, I couldn't find that the 7
Commission endorsed the Licensing Board's construction.
I 8
agree with you, the Licensing Board does read all of those 9
things together and comes up to roughly the position ti.at 10 you are advocating.
11 The problem is that when I got up to the Commis-12 sion, the Commission doesn't really address that issue.
Is
(~}
13 my understanding of that decision correct?
\\_/
14 MR. PERLIS:
I would say you are correct, that 15 the Commission doesn't really address it.
The Commission 16 certainly doesn't indicate any strong disagreement with 17 that, with the Licensing Board --
l 18 JUDGE EDLES:
That's quite true.
l 19 MR. PERLIS:
-- tying the two regulations together, 20 JUDGE EDLES:
That's quite true.
21 MR. PERLIS:
Finally, there has been a suggestion 2*
that a 50.47(c) showing would be all right here but one l
23 wasn't made.
And, I would be confused here, because if you
, (-)
24 did have to make a 50.47 (c) showing based on the total l
s x
\\'#)
25
' absence of any safety significance to off-site plans at this
62 1
level, the showing would almost be an ipso facto showing.
\\
2 There is_no safety significance, therefore, you wouldn't 3
need any compensating measures.
And, so if one were 4
required --
5 JUDGE EDLES:
Well, I think in fairness, my 6
recollection of Mr. Backus' point, he wasn't really address-7 ing the safety merits or implications.
All he was saying, 8
and I'm very sympathetic to this, is once you decide what the 9
rules are you've got to play by the rules.
10 We don ' t have a 50. 4 7 (c) application here.
We've 11 got something else.
And, you know, if the Applicant wants 12 to come in with an application under (c), Mr. Backus is
(}
13 prepared to file his papers, and he will address that.
14 So, I don't understand why all of this is perti-15 nent.
16 MR. PERLIS:
To that extent, I won't disagree.
17 I mention it because the point was made that.a 50.47(c) 18 showing might have been a way to get around 50.33(g).
In 19 our view, you don't need to get around 50.33(g), because all N
that regulation stands for is the-proposition that plans 21 must be submitted and the Applicant is the party who has 22 the responsibility to submit them, that_we are not going to 23 get them from the states or the local governments.
24 That responsibility -- and the whole basis for M
50.47 (g), 'tlle reason we require those plans to be submitted
63 1
is that the NRC now views, back in 1980 and still, emergency 2
planning as an important safety requirement.. And the sub-
~
3 stantive review of that important safety requirement is set
{
4 out in 50.47.and Appendix E..
r i
5 One last point I would like'to make', and that.is 6
that there is something in the record dealing with Issue 6.
i 7
And that is the Staff's SER Supplements 1 and 4.
Both.of 8
those were admitted below.
Both of those documents deal 9
with the. Staff's review of the Applicant's on-site plan, 10 including the issues set forth in Issue 6.
11 -
And, the Staff has completed its review, as it 12 is required to do before a fuel loading license can issue 13 and is satisfied that the Applicants' on-site plan does
(}
14 comply with the requirements of 50.47 and Appendix E.
- And, l
15 I might also point out that Massachusetts and SAPL have'had 16 an opportunity to challenge the Staff's determination in 17 that regard and never have.
18 So, it is uncontested that thel--
l 19 JUDGE ROSENTHAL:
How would they have challenged 20 it?
21 MR. PERLIS:
They could have filed a contention
]
22 any time in the process, subject to timeliness grounds, but i
'I 23 certainly a contention when SER Supplement'l 'came out.or.
24 Supplement 4 came out, saying the Staff says that-this
~1 (V
25 aspect of the emergency plan is adequate and the Staff is
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64 I
wrong for the following information.
.Or, they could have challenged the FSAR itself when the FSAR was' submitted,.
s 2
3' or challenged revisions to the FSAR as those revisions are 4
submitted.
5 They get all of those documents.
They never 6
challenged them.
And, in the absence of such a-challenge, 7
it then falls upon the Staff to determine whether on-site 8
emergency preparedness is adequate.
9 That's a responsibility that the Staff. fulfilled 10 in this case.
We have determined that it is adequate.
- And, 11 under those circumstances 50.47 (d) permits the issuance of f
12 a license; and the Commission's Shoreham decisions really 4
13 stand'for the proposition that'a license must be issued.
(
14 under those circumstances.
.15 Thank you.
16 JUDGE ROSENTHAL: ~All right.
It's 10 minutes 17 for rebuttal which I assume will be divided equally..
j i
endT2 18 MS. SNEIDER:
Yes, sir.
19 JUDGE ROSENTHAL:
Ms. Sneider, at the outset,'I i
20 would like to ask you if Mr. Dignan is right,'thatrifShe. sends 21 in 33, or whatever number itnis,hcopies of that; document 22 that is sitting on the table that will end the ball game?
Z3 JUDGE EDLES:
Well,' I believi' he said with some 24 amendments.
I guess he would change the names-up there.
7 25 MR. DIGNAN:
No.
I would send this one in if I
~
65 l
l {s.
that is all it took, because.I will tell you, it's a pretty 1
l.
}
/
2 good plan.
Massachusetts did.a whale of a job.
3 JUDGE ROSENTHAL:
I'm just trying to really get l
4 at what the issue here is in a real sense.
I mean, I i
5 understand that you are talking in terms of the obligations 6
under 50.33(g), and I understand the Comn gnuealth's position 7
that those obligations have not been fulfille d.
I 8
Now, Mr. Dignan says if we would agree with you, 9
he would go to the expense of submitting that document.
- Now,
.)
10 is that going to moot the --
i 11 MS. SNEIDER:
No, I don' t think that would.
12 JUDGE ROSENTHAL:
Tell.us why not.
(~)
13 MS. SNEIDER:
Well, first of all, I don't know V
14 exactly how Mr. Dignan got those plans.
The one on top i
15 there, I can tell you, was not submitted to FEMA informally 4
16 or otherwise.
Perhaps a previous version had been informally 17 submitted.
I also know what FEMA thought of it.
18 JUDGE ROSENTHAL:
Well, we are not dealing --
19 remember, nothing has to be reviewed.
M MS. SNEIDER:
Right.
21 JUDGE ROSENTHAL:
We are only talking about 22 something that has to be --
23 MS. SNEIDER:.
It's not a plan'that would be 24 implemented by the Commonwealth.
So, I don't think that --
M JUDGE ROSENTHAL:
What difference does that i
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66 I
make, whether it would-be implemented by the Commonwealth 1
2 or not?
There is nothing in here that you --
3 MS. SNEIDER:' Well, the Commonwealth ~does not 4
call it its plan, so.I think at this point --
5 JUDGE EDLES:
The utility would callit its plan.
6 MS. SNEIDER:
Well, if the utility submitted a 7
~ plan that it calls its plan for the Commonwealth, under the 8
Commission's interpretations of the regulations, we would 9
concede that that would satisfy the requirements.
I may 10 disagree with that, but I understand that's the way the.
11 Commission interprets it.
i 12 JUDGE ROSENTHAL:
~Well, again we are bound by.
13 that interpretation whether.we would agree with.it or not.
f 14 MS. SNEIDER:
Right.
I would first like to say I
15
- that plans were submitted' in Shoreham before any operating i
16 license for low power or fuel loading was issued.
17 JUDGE WILBER:
I don't believe that was the l
18 question.
Were the plans submitted before the Commission 19 addressed the --
20 MS. SNEIDER:
The way the case proceeded in 21 Shoreham was that the County filed a-motion to terminate.
l 22 the proceedings.
Plans for the -- the utility plans had 23 not been submitted at that point, but the Board assumed ~
24 that the plans were going to be submitted very shortly.
25 IThere was no request before the Board at that
... _ _., - -.. ~. _ _.. _... ~. -.. -,, _ ~,.
67 1
point-for an operating license of any sort-to issue.
(s) 2 JUDGE EDLES:. At any rate, your point is -- and 3
I think this is pertinent ~, even though I agree with Mr.
4 Wilber, that it didn't exactly answer the question I had 5
asked.
Your point is that, at any rate, there was-a plan on 6
file before the low power license was issued?
7 MS. SNEIDER:
That's correct.
One other point I 8
would just like to clear up, I've just been. reviewing the 9
regulations and Section 50.47(c) was adopted when the 10 emergency planning regulations were originally adopted',
11 together with 50.47(a) and (b).
50.47(d) was adopted later 12 as an amendment.
13 JUDGE WILBER:
Wasn't there a word change in 14 50.47(c) specifically applicable to items in 50.47(b)?
I 15 think there was a single word change to reflect that they_
~
16 aren't going to review all of the plans.
4 17 As I recall, there is one word added that's 18 called -- I think it's applicable.
19 MS. SNEIDER:
'Perhaps.
j 20 JUDGE WILBER:
In other words, to be thel. applicable i
21
- standards as opposed to all of the standards.
22 MS. SNEIDER:
The other thing I would like to say 23 is first with respect to Mr. Dignan's argument that the 24 purpose of 50.33(g) is just a requirement for docketing, 25 that this Board has no jurisdiction to review whether'the
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68 1
. application is complete, I think it's clear when it's a N
2.
requirement for an operating license that at some point.in 3
the proceeding we have a right to have a hearing on whether 4
the requirement, which is one of.the Commission's regulations, 5
have,b'een met.
j 6
' JUDGE EDLES:
When'was 50.33(g) adopted?
Was i-7 that part of the 1980, I guess, package?.
8 MS. SNEIDER:
Yes, it was.
9 JUDGE EDLES: Does the Commission, to your 10 recollection, in its' Notice of Proposed -- actually I
i-11 believe, if I recall,'there was advance notice even in that i
1 12 case, do they speak to the purpose of 50.33 specifically?
13 I mean, obviously they speak to the emergency 14 planning rules generally, but do they speak to the issue-15 of why the' contents of the applications provisions of.their 16 rules, as to what that is about?
17 MS. SNEIDER:
I don't recall having seen any place 4
18 where they speak to that specifically,.but the commission 19 does make very clear -- and I quote from the Statement of 20 Considerations, "In order to continue operations or to 21 receive an operating license, an applicant licensee will 22 be required to submit its emergency plans as well as state-M
- and local governmental response' plans to NRC."
r~g 24 That seems very clear to me.
And, you know,-
25 likewise, I submit that Section 50.47(d) does not go to the w
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69 1
issue of submission, that in the Shoreham cases, which have 2
been quoted in the briefs of both the Staff and the Appli-3 cants, the only issue that the Commission speaks to is 4
whether a low power license can be issued absent FEMA 5
approval of off-site plans.
6 And, consistently they say 50.47(d), you know, 7
gives unqualified authority to issue a license absent FEMA 8
approval.
There is never -- the Commission nowhere states 9
absent submission of plans.
10 And, when the Commission did speak to this in 11 the Shoreham case, it also stated -- and, this is 17 NRC 741, 12 CLI 8313, there is -- at Page 743, "It is apparent that
(~)
13 the utility submission of a plan for Agency consideration 14 under 10 CFR, Section 50.47 (c) (1) is but the first step in 15 resolving the emergency planning controversy now before the 16 Licensing Board."
17 And, I submit that that's the purpose, that to 18 get this process started they have this requirement the 19 plans be submitted, and that it was not the Commission's 20 intent at the time it promulgated 50.47(d) that that require-21 ment be obviated.
22 Thank you.
23 JUDGE ROSENTIIAL:
Mr. Backus.
24 MR. BACKUS:
Mr. Chairman, just a couple of 25 brief points in rebuttal.
I do agree that we are talking
70
~
l' about an application for an operating. license under 50.47(a),
2 as Mr. Dignan said.
And, to my way of -- 57,'thank you..
3 To my way of thinking, that ties this directly 4
back into 50.33(g), because it talks about the license --
5 one of the requirements being that the facility has been 6
completed in accordance with'.the application as amended.
It 7
doesn't say with the application as docketed.
It says as 8
amended.
9 I think that necessarily imports what seems to me 10 the only logical construction, is that by the time ;you get 11 the darn thing where you want to crank it up or stick the-12 fuel rods in it, by that time you've got a complete applica-13 tion.
14 JUDGE ROSENTHAL:
Do you agree with Mr.'Dignan 15 that this issue would be rendered totally academic-if he 16
-filed a certain number of copies of~that formidable docu-17 ment that sits on his table?
18 MR. BACKUS: -Well, you've backed me into a bit of 19 a corner there, Mr. Chairman, because I don't agree with the 20 Commission's ruling on that, but as you point out we have to 21 accept'what the Commission is teaching on this.
~
22 I think,-as we went over with Mr. Edles, I think i
23-there is a certain minimum of good faith attempt to comply.
I i
l 24 I don't think you can simply take a piece of paper and write 25-Plan on it and submit that.
l
71 1
JUDGE ROSENTHAL:
Well, that's the plan.
2 MR. BACKUS:
Well, it may be.
It may be, and it 3
may not.
I've never seen it.
I don't know what it is.
4 This is testimony from Mr. Dignan that came before this 5
Board that I --
6 JUDGE ROSENTHAL:
The problem I have is that 7
under the regulations, as I understand them, whatever is 8
submitted doesn't get reviewed.
9 MR. BACKUS:
I understand that.
But, I still 10 think that what is submitted has to be a plan, not a pretense.
11 Now, whether that's a plan or a pretense --
12 JUDGE ROSENTHAL:
But, let's assume arguendo
(~'i 13 that that's something that's beyond -- considerably beyond --
./
14 my Paul Revere hypothetical, that it --
15 MR. BACKUS:
All right.
16 JUDGE ROSENTHAL:
-- would qualify as a plan, 17 maybe not as a great plan but it would qualify as a plan --
18 MR. BACKUS:
I understand.
There is a problem.
19 It can't be the state plan.
We all agree on that.
The 20 state doesn't acknowledge it.
It can't be the local plan; 21 it doesn't even purport to be that.
22 Can it be the utility plan?
Now, there is a real 23 good question.
And, I don't think we can know the answer 24 to that without a hearing.
25 If they submit something that was a state plan and
72 1
now say it's the utility plan, I think it's a question that g
N-)
2 would require some factual exploration as to whether that 3
suffices, because what you have to have is a state and 4
local or utility plan.
5 And, for them to merely adopt what they said was 6
once a nice state plan but is no more may not qualify as a 7
good faith effort to provide a utility plan.
8 I think the only other thing I wanted to say was 9
that I listened with great interest to the questions on 10 the implications of the Commission's statements on Issue 6, 11 and we certainly would adopt the position that that does 12 reflect Commission concern to some degree about off-site
(-]
13 safety in connection with this issue.
v 14 JUDGE ROSENTHAL:
Thank you, Mr. Backus.
All 15 right, I'm assuming, perhaps incorrectly, that the Applicants 16 and Staff do not see the necessity to file a supplemental 17 written paper on the 50.33(g) issue.
18 Am I right about that or wrong?
19 MR. DIGNAN:
The Applicant does not feel any 20 necessity to do that.
21 JUDGE ROSENTIIAL:
Staff?
22 MR. PERLIS:
The Staff does not.
i 23 JUDGE ROSENTHAL:
All right.
That being so, rT 24 the 50.33(g) issue stands submitted.
And, as previously (Q
x 25 indicated --
4 _.
73 1
1 MR. DIGNAN:
Mr. Chairman.
2' JUDGE ROSENTHAL:
Yes.
3 MR. DIGNAN:
If I mayc:be heard, as I've heard i
4 the Chair's statement on due time for those briefs, it 5
would work out to November 10.
k 6
JUDGE ROSENTHAL:
That's correct. ~Does that 7
create a problem?
8 MR. DIGNAN:
Well, I was going to ask the Board, i
9 unlesJ Mr. Backus feels strongly, if I could get a little i
10 relief on that.
And, I will.tell you frankly what my I
11 problem-is.
I'm moving next week.
i-l l
12 A decision has come down in another proceeding i
{ ()
13 before this Agency which I think will dictate my having a l
14 piece of paper in the hands of another Appeal Board on i
15 that very same date --
j i
16 JUDGE ROSENTHAL:
I can't imagine what Appeal f
17 Board that could be.
I 18 (Laughter.)
j 19 MR. DIGNAN:
If I could have some relief --
2 JUDGE ROSENTHAL:
What date do you suggest?
21 MR. DIGNAN:
I would like another week on this 22 one.
Would that be possible?
{
23 JUDGE ROSENTHAL:
Is.there any objection?
\\
24 MR. BACKUS:
Well, the only problem is that they, 25 with much fanfare, stuck those fuel rods in there.
So, we l
l
I a
74 I
1 are in a position where it is not' easily agreed that they
}
2 should stay there.-
i 3
JUDGE ROSENTHAL:
Well, I might say, Mr. Backus, 4
that I realize that you didn't participate on the Stay
?
5 aspect of this proceeding, but the Commonwealth of 1
6 Massachusetts which did file a. Stay Motion explictly conceded 7
in its Stay papers that the grant of that licenseato fuel 8
load and conduct pre-criticality testing did not involve I
l 9
reparable injury.
j
-10 And, in that circumstance, it's a little difficult l
11 for me to see the basis for, at least on public health and i
j 12 safety grounds, denying Mr. Dignan's request.
i j {}
13 MR. DIGNAN:
Mr. Chairman, may I also point out 14 that when SAPL filed its original Notice of Joinder, they 15 stated therein that they will file their brief in 30 days.
i j
16 It was only after the Board directed that.
So, i
17 if that had happened I wouldn' t have had to worry about this 18 for another three weeks.
So,'I really ask the Board for the 5
19 relief.
I 20 I admit it's a personal problem, but I would be i
21 very grateful.
i i
22 JUDGE ROSENTIIAL:
Supposing, Mr. Dignan, that --
f 23 well, Ms. Sneider, do you have any position on Mr. Dignan's f.
24 request?
l 25 MS. SNEIDER:-
.I have no position.
.... _. _... ~.. _ _ _ _ _. ~.. _. _. _. _., _ _ _... _, - _. _..... _... _ _ _ -.., _ _. - _ -.. _ _.
..... ~.
[
75 1
JUDGE ROSENTHAL:
All right.
Supposing, Mr.
N.
2 Dignan, would it be a help if we gave you'until that Friday 3
and then --
I 4
MR. DIGNAN:
That would help.
5 JUDGE ROSENTHAL:
-- if you put it in the mail we' I
6 would have it the following Monday.
I 7
MR. DIGNAN:
That would be a help.
j I
8 JUDGE ROSENTHAL:
So, if we could make'it then --
i
- 9 I guess that's the 14th.
I haven't got my calendar.
So i
.that, as matters now stand then, the responses of'the j
10 1
l 11 Applicants and the Staff will be due to be served by mail 12 on Friday, November the 14th.
i 13 MR. DIGNAN:
Thank you very much.
I appreciate
)
14 that.
f 15 JUDGE ROSENTHAL:
Yes, Ms. Sneider.
16 MS. SNEIDER:
Will the' Commonwealth have an 17 opportunity to submit a brief on those issues also?
l I
18 JUDGE ROSENTHAL:
Yes, you can.
Yes, everybody, i
l
{
19 yes, we will give you the opportunity, by.that same date, i
20 to respond on those issues.
i 21 All right.
If there is nothing further, with the 1
j 22 thanks of the Board to counsel, the Commonwealth's appeal
)
23 on the Section 50.33(g) issue stands submitted.
I 24 (Whereupon, the hearing is concluded at-12:10 S
25 p.m.,
Friday, October 31, 1986.)
{
I
CERTIFICATE OF OFFICIAL REPORTER
' O This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE (Seabrook Station, Units 1 and 2)
(On-Site Emergency Planning and Safety Issues)
DOCKET NO.:
50-443-OL-1; 50-444-OL-1 i
PLACE:
BETHESDA, MARYLAND DATE:
FRIDAY, OCTOBER 31, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
i (sigt) 7 (TYPED)
)
G.
J.
WALSH Official Reporter i
ACE-FEDERAL REPORTERS, INC.
1 Reporter's Affiliation i
O
-