ML20235W156
| ML20235W156 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/09/1987 |
| From: | Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#487-4582 OL-1, NUDOCS 8710160026 | |
| Download: ML20235W156 (46) | |
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October 9, 1987 (
gMP UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION @T-9PII:jl UFICE CC EEwaz;,
) B6CXEima 4 ;utyg' In the Matter of ) ERANcy .
}
Public Service Company of ) .
} New Hampshire, et al. Docket Nos. 50-443 OL-1
)
) 50-444 OL-1 (Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY
) PLANNING & TECHNICAL i
. ) ISSUES l l
NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S RESPONSE TO APPLICANTS' MOTION FOR VACATION OF STAY Introduction Pursuant to the briefing schedule established by the Commis-sion in its September 24, 1987 Order, Intervenor New England Coalition on Nuclear Pollution ("NECNP") presents the following argunents in opposition to Applicants' " Motion for Vacation of Stay," dated September 21, 1987.
I. DACKGROUND On January 9, 1987, this Commission issued an order, sua sponte, stating that it would review the Appeal Boarddu decision in ALAB-853 to consider the issue of whether 10 C.F.R. S 50.33(g) requires a utility applicant to submit a radiological emergency plan prior to the issuance of a license to operate at any level of power. The Commission simultaneously stayed the Director of Nuclear Reactor Regulation from authorizing zero or low power operation at the Seabrook nuclear power plant until further order of the Commission. At that time, Applicants had not submitted 8710160026 871009 3 PDR ADUCK 0500 0503 .
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7 radiological emergency plans'for " state and local governmental entities" within the Seabrook EPZ as required by 10 C.F.R. S 50.33(g), due to'the Commonwealth of Massachusetts' determination that adequat'e. emergency. planning for the Seabrook facility was not possible. Nor had. Applicants filed a so-called " utility plan" to compensate'for the' lack of participation by state and local government entities. Instead, Applicants took the absolutist position that 5 50.33(g) did not require the submis-g sion'of.either a state and local plan or a " utility. plan" at all
. prior to the issuance of a low or zero power license.
On March 25, 1987, the Nuclear Regulatory Commission issued
.a Partial Initial Decjsion ("PID") which authorizes Public Ser-
-Vice Co. of New Hampshire ("PSCNH") to operate the Seabrook V
nuclear power' plant.at power levels up to and including 5% of a rated power.1 The Interveners appealed that decision on the merits, alleging, inter aliA, that various contentions concerning- ,
.onsite emergency planning and safety issues were wrongly rejected by the Licensing Board. The PID was issued prior to any hearings or findings on the adequacy of the New Hampshire offsite' state l
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l 1 Public Service Co. of New Hampshire, et al. (Seabrook Station, Units 1 and 2), LBP-87-10, 25 NRC . Hereinafter, all administrative decisions in the Seabrook proceeding will be cited only by number and date. The agency's citation system denotes decisions of the Licensing Board Panel as "LBP" deci-sions, of the Appeal Board as "ALAB," and the Commission deci-sions as "CLI."
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- and local government emergency plans, and prior to the submission i of either state and local offsite emergency plans for the Com-monwealth of Massachusetts, or of a bona fide compensatory or utility plan.
On April 7, 1987, Applicants filed a " Suggestion of Mootness and Request for Vacation of Stay" with the Commission, arguing that the issue of whether 5 50.33(g) required emergency response plans to be submitted prior to the issuance of a low or zero power license was now mooted based on their anticipated filing of ;
a " utility plan," and that the stay of the low power license could therefore be vacated. On April 8, 1987, Applicants served on the parties a document that they described as a " utility plan." i On April 9, 1987, the Commission issued a Memorandum and Order (CLI-87-02) reversing ALAB-853, and finding as a matter of I l
law that " sound policy favors requiring the filing of a State, local, or utility plan before any operating license is issued, including a license confined to fuel loading or low-power test-ing," and that Commission regulations prohibited issuance of a low power license if "some of the materials that normally are essential to support a full power license under our regulations were missing."2 The Commission also recognized that low power 2 CLI-87-02, at 6.
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operation.may not be authorized if'there are " insuperable obstacles" to issuance of a. full power license.3 The' Commission
'then requested the. parties.to_ file' briefs on the question of whether the plan filed by Applicants satisfied the requirements.
of 10 C.F.R. S 50.33(g).
On June 4, 1987, the Federal Emergency Management Agency (FEMA) formally announced'the results of its review of the plans
. submitted by the state of New Hampshire for the New Hampshire portion of the Seabrook EPZ. Due to the unique demographic and geographic' characteristics of the Seabrook site -- including a
.very large summer beach population in close proximity to the
' plant that can neither be quickly evacuated or effectively sheltered -- FEMA announced that it could not find that the New Hampshire plans provide adequate protection to public health and safety.4 Hearings began in New Hampshire on October 5, 1987, to determine if Applicants can overcome this " rebuttable presump-tion" that the New Hampshire plans are neither adequate nor capable of implementation. 10 C.F.R. 5 50.47(a)(2).
On June 11, 1987, the Commission issued a Memorandum and 3 CLI-87-02, at 6. f 4 Reg " Response of Federal Emergency Management Agency to Massa-chusetts Attorney General James M. Shannon's Off-site Emer-gency Preparedness Interrogatories and Request for Production of Documents to FEMA (Set No. 2)," dated June 4, 1987, at p Appendix B.
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Order, rejecting Applicants' request to lift the stay of low power. operation on the grounds that Applicants' so-called "util-ity: plan" did not constitute ~a utility plan at all,.and therefore
'did not satisfy even the "very minimum for such'a. submittal.n5 Under a letter dated September 18, 1987.from public' Service of New Hampshire to the Commission (hereinafter "the Letter"),
Applicants submitted a plan which they allege constitutes "a com-9 prehensive utility emergency plan".for Seabrook." However, even a facial' review of the document discloses that it is impossible to conclude that this latest plan is either bona fide or intended for implementation. Applicants openly admit that essential com-ponents of the plan are incomplete, and that the plan provides only the barest suggestion that they'"should be completed in the future.n6 Other critical regulatory requirements are summarily disregarded with no adequate explanation. Finally, there is no factual basis upon which one might conclude that numerous criteria have been addressed at all, much less adequately, since essential supporting documentation is either nonexistent, or has been redacted so as.to convey no meaningful information what-soever.
Despite these deficiencies, Applicants filed, on September 5 CLI-87-03, slip opinion at 6 6 Letter, at 3.
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21,;1987, a motion to' vacate the Commission's stay based on the September 18, 1987 filing.
Finally, on October 1, 1987, the Atomic Safety and Licensing Appeal. Board (the " Appeal Board") issued ALAB-875, reversing'and remanding in.part the March 25, 1987 Licensing Board decision authorizing a low power license for Seabrook, and ordering, inter alif, that the Licensing Board admit-two of NECNP's contentions.
The Appea". Board ordered the Licensing Board to begin the litiga-tion process for two safety issues improperly rejected 7 and either to find as-yet unidentified support in the record for its ruling that a class of electrical cabling is qualified to survive accident environments, or to reopen the record on that issue.
ALAB-875 slip. op. at 14, 20, 35-39.
It should be.noted that, in reversing and remanding in part the Licensing Board decision authorizing low power operation, the Appeal Board observed that due to the Commission's independent stay, no low power operation of-Seabrook is currently authorized.
However, in the event that the Commission should lift its stay prior to resolution of the remanded safety issues, the Appeal Board has directed the Licensing Board to " determine expeditiously the appropriateness of a renewal pendente lite of the low power authorization...", and ordered further that any l
7 These issues concern protection against steam generator tube ruptures and potential degrading of the plant's heat removal capability due to biofouling. ALAB-875, slip op, at 13-20.
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> I ASLB decision renewing low power authorization pendente lite j "shall not become effective for a period of ten days following the date of its service to enable any dissatisfied party to seek i appellate relief." ALAB-875, Slip op. at 49-50. Thus, the legal effect of the Appeal Board's ruling has been to vacate the low power authorization for Seabrook and provides that, should that Licensing Board decide to reinstate low power authorization f before the conclusion of the remand hearings, it is required to issue a new ASLB decision justifying low power authorization and grant a ten-day stay to give the parties an opportunity for appeal therefrom.
II. ARGUMENT.
A. Summary The Commission should not lift the stay preventing low power authorization for the following reasons:
- 1. The Atomic Energy Act entitles parties to a hearing on all issues material to licensing prior to operation at any power level, i
- 2. The NRC rules do not permit the Commission to allow low power operation on the basis of an ad hoc, case-by-case choice as to which rules must be met at various stages prior to full power.
- 3. When a " utility compensatory plan" is submitted to satisfy emergency preparedness requirements, the NRC rules on l
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their face do not permit low power operation prior to a finding by the ASLB that the compensatory plan is adequate on its merits.
- 4. Not withstanding the above arguments, even if the statute and rules give NRC the authority to authorize low power operation, the Applicants' utility compensatory plan is neither-
. bona fide nor shows that adequate emergency responses is within the realm of the possible.
- 5. Sound policy precludes granting of a low power license where a) the underlying ASLB decision on safety issues has been reversed and remanded for further hearings, b) FEMA has announced that the plan submitted by the sate for the New Hampshire portion
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of the EPZ does not provide adequate protection for the public, and c) the lead Applicant, PSCNH, is by its own repeated pronoun-cements, virtually on the eve of instituting proceedings under the bankruptcy code.
B. The Atomic Energy Act Prohibits Authorization of Low Power Operation Prior to Completion of Public Hearings on All Issues Material to Full Power Licensina. ,1 Issuance of a low power license prior to the completion of emergency planning hearings will violate NECNP's right under S 189 of the Atomic Energy Act, 42 U.S.C. 9 2239(a), to a full operating license hearing before the license is granted. To the extent that 9 50.47 (d) of the Commission's regulations provides i
otherwise, that regulation is inconsistent with, and violates !
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rights guaranteed by,' the Atomic Energy Act.
NECNp's. rights.in,this proceeding are governed by Section 189 (a) (1). of the Atomic Energy Act, which requires that in any proceeding "for the granting, suspending, revoking, or amending of any' license'or construction permit,"
The Commission shall grant a hearing upon the request of any person whose. interest may be affected by the proceeding, and shall admit any such person'as a party to such proceeding.
42 U.S.C. 5 2239(a). The hearing must be held before the Commis-sion takes the proposed licensing action. Shelly v. U.S. Nuclear Reculatory Commission, 651 F.2d 780, 789 (D.C. Cir. 1980),. <
vacated on other arounds, 103 S.Ct. 1170 (1983); Union of Con-cerned Scientists v. Nuclear Reaulatory Commission, 735 F.2d 1437
.(D.C. Cir. 1984).
The Commission's regulations at 10 C.F.R. 5 50.47(d),
promulgated in 1982, provide that an operating license authoriz-ing low power testing and further operation short of full power operation. At the time 10 C.F.R. 5 50.47(d) was promulgated, temporary statutory authority existed authorizing the issuance of
" temporary operating licenses" prior to the completion of offsite emergency planning hearings. This temporary authority precluded any challenge to the rule during the rulemaking process. How-ever,-that statutory authority has since expired.8 Currently, f I
l 8 See 42 U.S.C. 9 2242, which expired December 31, 1983.
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the-Atomic Energy Act contains no provision permitting the Com-mission to authorize the operation of a nuclear power plant at low power levels before full power license hearings are complete; )
nor does it dispense with the prior' hearing requirement for any
' initial operating license decision. Rather, under the Act, all issues that are material to the ful'1 power operation of a nuclear power plant must be considered relevant to the issuance of a license for any level of operation.
1.. The legislative history of the expired Temporary Opera-tjng License Authorization demonstrates that Congress did not authorize issuance of low power licenses until completion of all hearinos relevant to licensino, ,
l This interpretation of'the Atomic Energy Act is reinforced ]
1 by the legislative' history of the provisions regarding low power operation. On the two prior occasions when Congress perceived a need to permit low power operation before licensing hearings were i complete, it gave the Commission only temocrary authority to do i so.9 In both instances, Congress was responding to a perceived I
emergency, and in both instances Congress strictly limited the {
duration of the NRC's authority to issue a " temporary operating license" or "TOL." The' legislative history of these two enact-ments demonstrates the strength of Congrese' intent that in the l l
absence of specific Congressional authorization, the public's N
9 See 42 U.S.C. 5 2242., which expired December 31, 1983.
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l statutory.right to full hearings on the issuance of operating licenses may not be compromised by the issuance of a low power 1
license before those hearings have been completed.
(a) 1972 temporary oDeratina license amendment In 1972, responding to a perceived threat of imminent energy shortages, Congress amended the Atomic Energy Act to permit the NRC to issue temporary operating licenses without the completion of the full adjudicatory hearings required by Section 189a of the Act.10 According to the Chairman of the Atomic Energy Commis- l sion, the legislation was needed in part to allow the NRC to speed reactor testing and thereby " properly anticipate emergency t power needs." Statement of James S. Schlesinaer before Joint Committeeoon Atomic Enercy, March 16, 1972, at 74.
1 The new provision required that before the Commission could )
issue a TOL, it must have received the letter of the Advisory Committee on Reactor Safeguards ("ACRS"), the Staff's Safety Evaluation Report ("SER"), and the environmental impact state-ment. However, interveners were elititled to no more than an informal hearing on whether the plant could be operated safely on i
a temporary basis.
Section 192 did not eliminate the full licensing hearings l l
required by Section 189a, but allowed the NRC to postpone them 10 Section 192 of the Atomic Energy Act (42 U.S.C. 5 2242),
added June 2, 1972, Pub. L.92-307, 86 Stat. 191. The full test of the amendment is attached as Exhibit 1.
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until after issuance of the low power license. As the House Report explained, Under this new authority, the Commission is authorized to issue a temporary license to operate the reactor under these circumstances even though the full-term license is being contested by-interested members of the public. The temporary license would not deprive the public of a full review of the health and safety and environmental matters which may be contested. All substantive requirements of applicable law would have to be satisfied.
) The issuance of a temporary license would not prejudice in any way the rights of parties who are par-ticipating in the contested hearings on the full-term license nor would it prejudice the actions which the final decision on the full-term license may require in the interest of additional conditions pertinent to full-term operation.
House Rept. No. 92-1027, 1972 U.S. Code Cong, and Admin. News 2351-52.
In permitting the expedited issuance of TOLs, Congress l attempted to avoid or ameliorate " threatened shortages" during the summer of 1972 and the winter of 1972-3. 1972 U.S. Code Cong. and Admin. News at 2352. Congress was also concerned that litigation of environmental impact statements under the NRC's newly promulgated regulations for the implementation of the l National Environmental Policy Act ("NEPA") would result in
" prolonged" hearings that would delay licensing. Id. at 2355.11 11 As the House Report explains, after passage of the National Environmental Policy Act in 1970, the issues open for litiga-tion in licensing hearings "were expanded so that the Commis-
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- In particular,-the legislation was designed to overcome the court's' ruling in Izaak Walton Leacue of America v. Schlesincer, 337 F.2d 287'(D.C.D.C. 1971), in which'the District Court enjoined issuance of a low power license because the commission had failed to; file an environmental impact statement for the plant or to offer a hearing'on the. adequacy of the EIS. See j Statement of James S. Schlesinger before Joint Committee on Atomic Energy, March 16, 1972, at 77-78. )
Sensitive to the interests of the public in licensing hear-ings, Congress stressed that the temporary licensing provision should be used by the Commission only where there was an " urgent need" for the energy. Id. at 2356. More important, the legisla-tion contained an expiration date that gave the NRC less than a j 1
year,and a half to' implement the TOL provision. Thus, Congress gave the NRC only so much authority to issue TOLS as it deemed
!1 was-necessary to cope with a perceived short-term energy crisis. -)!
Clearly, Congress intended that under ordinary circumstances and .I l
in the absence of'special legislation, the public was entitled to (continued)
I sion had to consider all significant environmental matters in j its decisionmaking process, which, under the Atomic Energy :
Act, includes the hearing requirements summarized above." ;
1972 U.S. Code Cong. and Admin. News at 2355. In response to [
the U.S. Court of Appeals' 1971 decision in Calvert Cliffs Coordinating Committee v. United States Atomic Enerav Commis- )
ginn, 449 F.2d 1109 (D.C. Cir. 1971), the Commission had ;
" issued regulations which impose a very stringent environmen- J tal review" of proposed nuclear reactor licenses. Id. !
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-full adjudicatory hearings before the issuance of an operating license'.
'(b) 1982' temporary cnseratina license amendment !m c
~After the~1972 temporary operating license legislation. j expired,'nine years passed before Congress again perceived the
~ need to-grantLutilities relief from the Atomic Energy Act's l
strict prior hearing requirements. In January of 1983, in response to licensing delays caused by-.the Three Mile' Island accident, Congress again enact d a special, limited term
. temporary operating license' provision. This new version of 5 192 allowed the Nuclear Regulatory Commission to issue temporary c
licenses'for fuel loading,and' operation at up to 5% of rated c, power, with special provision for incremental increases in hower levels.12 According to the Senate Report, the legislation was designdd
h to alleviate the licensing delays that had been caused by the impositionofadditionalsafetyrequirementsfollowingtheh'hree i l
Mile Island accident: '
Largely.as a result of this situation, it became appar-
.ent in late 1980 that some delays would-be experienced between the time when construction of these plants would be sufficiently complete to allow fuel loading <
and the start of operation, and the time when all requirements for the issuance of an operating license,
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j 12 42 U.S.C. 5 2242, Pub.L.97-415, 96 Stat. 2072 (January 4, The complete text of this provision is attached as l 1983). ]
l Exhibit 2. ,
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~includina the hearina reouirem'ents, of the Atomic q's j( " . Energy Act, would-be met. 1, .
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'Sen.: Rep;;No.'97-113, 1982 U.S. CodeiCcng. and Admin. News ato3593f(emphasis added).
LAs summarized in debates on the. bill,
'Theitemporary operating license provision confers upon the NRC a much-needed authority arising out of the.
Post-TMILlicensing. delays,- authorizing;the NRC to issue operating licenses to applicants prior to the comple- .
' tion ofLthat certain public hearing required under the Atomic Energy Act, if all other statutory requirements ,
are met. ;
7 1 128'Cogg. Rec.
15314 (December 16, 1982) (remarks of Rep. l
.Simpsda).
s Like the original version of 5 192, the 1982 amendment I
cctablished as prerequisites for a TOL the filing of the ACRS letter, the Staff's Safety Evai'uation Report, and a final environmental impact statement.. Ip fhddition, the 1982 law required that no TOL could issue'before the submission of a State,. local, or utility emergency preparedness plan.
Were either of these two temporary operating license provi-sions in place'today, they might give the Licensing Board the authority to issue an operating license permitting low power Le operation before completion of licensing hearings. However, both f
. provisions expired within a shorb time of their enactment. The legislative history of the TOL bills demonstrates unequivocally e
L that Congress considered pre-hparing licensing such as the low I
power authorization sought here to constitute a short-term emer-1 .
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gency1 'skop?gpmeasure. In'the absence of such specific author' C Azation from Congregss, the Commission may not issue an operat{o(g p' ;,
L' license authorizing any level of operation at the Seabroo't;.
nuh: lear powen ;Na t until it completes hearings on all issues
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that are material to full'pover operation, y + pi 3) )
d L2 g. "Sh411v' Amendment" Legislative Historv
, :, k n u e ii It is by now generally recogninid that thg'fssuance of si, A license authorizing' low power operatiovgwould have the irrevers-b f 'l )
fibleeffe'ctofcausingthecontarinatiohloftheSeabrookplant, I. ,.
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incurringanobligationtodecontaminatedqdreh).fereit, and
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posingiIr me risk to the public health and safety. kona Island '
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Lichtin{a'Co. (Shoreham-NucleartatP'ow ion) , rCLI-8 5-12, 21'NRC' 1587 -(1985). For this' reason, the~ legislative history of the ,
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's "Sholly AmeQhihnt" reinforce's' the view that Congress. 'did not
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.jhtend ,tki @thorize the. in2tpai op,_ eration of a. nuclear power
. / '.j J b t f i' plant,kt, pig power level, w!th its'accompanyingclireversible t '( ;;) y, ; /.) ;
change [st an6 raised risk jo 'tbe public health and , safety, until.
, i. . \; q the NRC rio,mpletes hearings on all ishu'ed that are nab,erial to the fullpder.licensingoftheplant.13 The"Shollydadment"
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amenddd Section '18h(a) to permit the Commission to waive the !
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prior hp<aring ':equirement for zope::hting license amendments that a pose' "no signiffqpant hazards consideration. " Significantly, Con-a <
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sM-415 5 12(a), 96 Stat. 2073 J' P{q('42 January (J.S.C. 4, $198. \ 2239 ( a y , \
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k' + .._.... h/1.' ;. f' a gress'did_not,Jat that time, include' initial licenses within the ambit of.that' authority. Rather, only for license amendments which, despite'their " irreversible consequences," pose "no sig-nificant hazards consideration" to the public, has Congress made an' exception. The.following colloquy-between Rep. Markey and Rep. Ottinger clearly indicates that the NRC is not permitted, absent specific r.g ' Congressional authorization, to take any licensing action carry- "- ing " irreversible consequences" without granting a prior hearing on those actions.. MR.-MARKEY:- I note that with respect to section 12 of the bill, the so-called Sholly provision, the-statement of man-agers emphasized that, in determining whether a proposed amendment to a facility operating license involves no sig-nificant hazards consideration, the Commission should be sensitive to those license amendments that involve irrevers-ible consequences. As chairman of the subcommittee that originated the Sholly provision in this House, do you under-stand that statement'to mean that the Commission should be especially careful in evaluating, for possible hazards con-sideration, amendments that involve irreversible con- ! sequencos: MR. OTTINGER: Yes, that is exactly what.I understand our
' intent to have been. Once a license amendment with irrever-sible c nsequences has received the Commission's approval and has'gone into effect, as a practical matter it will be impossible to correct any errors that may have entered into the Commission's decision. Therefore, we believed that the Commission has an obligation, when assessing the health and safety considerations of amendments having irreversible con-sequences, to insure that only those amendments that very clearly raise no significant hazards issues will be allowed to take effect before the required hearings can be held.
128 Cong.. Rec. 8823 (December 2, 1982). In sum, the Cholly Amendment contains no provision that would exempt operating licenses from prior hearings based cn
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something analogous-toLa "no'significant hazards consideration" finding. Nor does the' Atomic Energy Act contain'any authority for.the Commission's. regulation at 10 C.F.R. 5 50.47(d), which i relies on atfinding that low power operation involves no sig-nificant-risk.to the public health and safety in waiving the requirement for the approval of offsite emergency plans before
- low-power licensing.14 Therefore, no matter how insignificant
.the. commission;may view the consequences of-low power operation i in the context of the overall benefits of full power operation, the Atomic. Energy Act forbids the issuance of a' low power license
.until the Commission has made the findings and reached the con-clusions required for issuance of an operating license for the
. Seabrook-plant.
III. There is No Authority in the Commission's Regulations For Issuance of a Low Power License Prior to Findings on All
' Issues Relevant to Full Power Operation.
In earlier briefs submitted the Commission on this issue,15
- 1 it has been suggested that the Licensing Board is authorized i
14 Een Proposed Rule, " Emergency Planning and Preparedness for Production and Utilization Facilities," 46 Fed. Reg 6113 (December 15, 1981). 15 Applicants' Brief "On Review Ega Soonte by the Commission of a Decision of the Atomic Safety and Licensing Appeal Board ( ALAB-853 ) issued November 20, 1986 Denying An Appeal of the Decision of the Atomic Safety and Licensing Board Granting u Applicants' Motion For Authorization to Issue License to Con-duct Fuel Load and Precriticality Testing," January 26, 1987, at 7. i L t s I
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under 10 C.F.R. E'50.57(c). to' summarily dispense with the requirement that emergency plans be submitted (and presumably, NECNP's position that they be fully litigated), on the grounds that emergency. planning is not relevant to low power licensure. However, for the reasons stated above, this construction of 5 50.57 (c)- is inconsistent with the Atomic Energy Act, and Inter-venors' rights to a prior hearing thereunder. In' fact, the plain 9 language and regulatory history of.5 50.57(c) further reinforces our view that the Commission has no authority to grant the equi-valent of ad h2c, case-by-case " exemptions" from mandatory licensing requirements (without meeting the exemption standards enunciated in 550.12a) in the context of low power operating licenses. Commission regulation 10 C.F.R. 5.50.47(c) provides that, in cases of motions for low power authorization, f Action on such a motion by the presiding officer shall be taken with'due regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent his contentions are relevant to the activity to be authorized. It is this underscored language that is relied on, out of con-text, as ostensible authority for the Licensing Board to pick and I choose among mandatory licensing requirements and to require Applicants to satisfy only those requirements that are, in the absolute discretion of the Board, " relevant" to low power licensure. However, this was plainly not the intention of this regulatory language. Rather, the real purpose of this provision h 1 [- l ..
l I is made plain by the next sentence of the regulation, which pro- i vides that j Prior to taking any action on such motion which any party l opposes, the cresidina officer shall make findinas on the I matters specified in paracraph (a) of this section as to which there is a controversy, in the form of an initial decision with respect to the contested activity sought to be authorized. The Director of Nuclear Reactor Reaulation will make findinas on all other matters specified in naracraph (a) of this section. 10 C.F.R. 5 50.57(c) (emphasis added).
. l This language clearly indicates that'the purpose of 5 {
- 50. 57 (c) was simply to relieve the Licensing Board of the obliga-l tion.to make positive findings on uncontested issues prior to low j power operation, by delegating this function to the Director of -
Nuclear Reactor Safety (NRR). Nothing in the regulation vitiates the Licensing Board's obligation to make findings on all operat-ing' license issues "as to which there is a controversy" prior to r issuance of a low power license. In other words, this regulation was clearly intended to be protective of the parties' rights to a prior hearing on contested issues, not to abrogate them altogether. The regulatory history of 5 50.57(c) reinforces this read-l ing. The language relied on by Applicants'was adopted in 1972, when 5 50.57 was amended to adopt procedures designed to expedite and make more efficient administrative decisionmaking.16 There l l ! 16 F_qn Notice of Proposed Rulemaking, " Restructuring of Facility ! l License Application Review and Hearing Processes," 37 Fed. ! s l 8 j i i
i is absolutely no suggestion that the amendments were intended to effect a change so drastic as to permit the issuance of an opera- : ting license without resolving all safety issues. Indeed, the statements of consideration accompanying the notice of final rulemaking makes clear that "the amendments do not involve drastic changes in the administrative process or novel proce-dures.u17 The Commission, in the notice of proposed rulemaking, clearly explains what it intended by the language at issue here: q l At the operating license state, where a hearing is required f only upon the request of a person whose interest may be affected, the issues in a proceeding would be limited to matters that are actually put in controversy by the parties. ' Thus, if' radiation safety matters were not put in issue, they would not be considered at the hearing. Under this j anoroach, the atomic safety and licensina board or other presidina officer would not make'the findinas on the tradi-tional, ultimate issues, but would make findinas only op the matters in controversy. and, depending on the resolution of those matters, the Director of Regulation, after making the requisite findings, would issue, deny, or appropriately con-dition the license. 37 Fed. Reg, 9331, 9333 (May 9, 1972) (emphasis added). ( And in fact, between 1972 and 1984, this rule was not con-strued as permitting a Licensing Board to determine summarily that contested safety issues are "not relevant" to low power operation. This novel interpretation can be traced to Eone Island Lichtina Co (Shoreham Nuclear Power Station, Unit 3), CLI-(continued) Rea, 15124, Col. 3 (May 9, 1972). ) I 17 37 Fed, Rea, 15127, 153?8, Col. 1 (July 28, 1972). j 1 l
L f ' h;; t.- b L 84-8, 19 NRCill54 (1984), in which LILCO sought a low power-license under S 50.57 (c) . The Commission first held that as a condition of even low power operation, the Applicant must satisfy the mandatory General Design Criterion-requiring reliable emer-gency power supplies, unless it satisfied the requirements for an exemotion under 10 C.F.R. 5 50.12 (a) , demonstrating, inter alia, that operation without compliance'with the rule would be "as safe l E as" operation in compliance with the rule. 18 In a. revealing SECY paper responding to this decision, the Commission staff recog-1 nized that a Licensing Board could not " distinguish more care-fully among safety requirements for' fuel loading and other opera-tional phases,... without extensive changes to the regula-tions."19 -Instead, the Staff suggested that the Commission would-have greater flexibility if it relaxed the "as safe as" standard it had set for granting exemptions. The Staff relied on the fol-lowing ~ reasoning to justify this less restrictive exemption stan- j dard: i Some regulations, including some GDC, may properly be con-sidered inapplicable to fuel loading and low power testing if such a conclusion is fairly compelled by simple logic and common sense. However, a reculation cannot be considered inacolicable merely because, as anolied to fuel loadina or low-oower testina, it is loaical'but arcuably excessive. 18 550.12(a) also requires, inter alia, a showing of exigent cir-cumstances justifying an exemption. ; 19 SECY-84-290A, at 2. 1
--E._______._
,d-j, i
-l
( l SECY-84-290A, at 26.
.The first'part of the above-quoted language was then seized L out-of-context by the Licensing Board as authority for simply disregarding on a case-by-case basis mandatory safety require-l .ments which do.not appear to the ASLB to be necessary for opera- )
tion:at less than full power. Shoreham, LPB-84-35A, 20 NRC 920, , I 924 (1984). In so holding, the Licensing Board cited no authority (other than the inapposite SECY paper) and essentially ignored the express language in the SECY paper stating that the
" flexibility" perceived by the Licensing Board was not possible j
\
under the current language of 5 50.57(c), as well as the overall { l thrust of the SECY paper that the sole way to avoid a safety l requirement was to apply for an exemption under 5 50.12. Despite
.the total lack of regulatory or case authority for this novel reading of $50.57(c), the Commission approved the Licensing- ]
]
Board's decision. Shoreham, CLI-84-21, 20 NRC 1437, 1439-1440 ] l (18C4). Again, no authority other than " simple logic and common sense" was cited, i Interestingly, had the Commission intended to interpret 5 50.57 (c) , which has been in existence since 1972, in this novel manner, it would presumably have found it unnecessary, ten years later, to promulgate 5 50.47(d) to provide a specific, generic
. exemption from the regulatory requirements governing offsite emergency planning for low power license applications. 4 obviously, in 1982, the Commission felt that it had no authority, I
l
\
l i
l: l 1 l f without the promulgation of a new regulation, to give Licensing Boards the uncontrolled discretion to grant what amount to regulatory exemptions on a purely ad hoc, standardless basis which places the burden upon those opposing a license to estab-lish the applicability to low power of any and all rules. J Finally, any reading of 6 50.57(c) which gives licensing boards uncontrolled discretion to grant the practical equivalent of regulatory exemptions would stand the Commission's licensing scheme on end. NRC regulations establish a presumption that licensing regulations are valid for all nuclear power plants and may not be relitigated or challenged in an operating license case, except via the formal process for obtaining regulatory
-exemptions. 10 C.F.R. 5 2.758(a). Regulatory exemptions may be i granted only where the applicant can demonstrate special circum- I stances with respect to the subject matter of the proceeding such .)
that application of the regulation would not serve the purposes for which it adopted, or upon a showing of " exceptional circum-stances." 10 C.F.R. SS 2.758(b) and 50.12. Under both exemption standards, "the burden is on ... the petitioner for a waiver." l Carolina Power & Licht Company, et al. (Shearon Harris Nuclear Power Plant), LBP-95-5, 21 NRC 410, 443 n.16 (1985), aff'd, ALAB-837, 23 NRC 525 (1986). Applicants have not petitioned for a waiver of any emergency planning regulations, including 5 1 50.33(g). Until they do so, and satisfy the formidable burden ! l placed on one seeking a waiver, no exemption from emergency plan- l l l l s
r ning regulations can be granted.
.In sum, to summarily dispense with a mandatory safety
- requirement outside of the formal exemption process would estab-lish a-presumption that Do regulation is relevant to low power
. operation unless an intervenor.shows that compliance is neces-sary. : Clearly, this violates the presumption of the validity and general applicability of all regulations that is embodied in 10 C.F.R. 5 2.758, and unlawfully shifts the burden of proof away from the party seeking a waiver of a regulatory requirement, placing it instead on parties who seek to ensure compliance with valid regulations. Accordingly, 10 C.F.R. 5 50.57(c) cannot be construed as granting the licensing board the authority, on an ad hog, case-by case basis, to waive mandatory safety requirements.
IV. Commission Regulations Do Not Authorize the Issuance of a Low Power License Prior To Findings on the Adequacy of a
" Compensatory Plan".
Even assuming, solely for the purposes of argument, that i there is some general authority to permit low power licensure in the absence of findings on the adequacy of offsite emergency i planning,.that authority is, on its face, not applicable where the Applicants go the route of submitting a " utility plan" to l compensate for the total absence of state and local participation in emergency planning, as is the case here. This is because utility plans are not governed by 10 C.F.R. 5 50.33(g) or S 50.47(d) at all, which refer only to " State and local government" emergency plans. Rather, compensatory or " utility" plans, as the l
i a j i i commission has previously held, are governed by 10 C.F.R. S j
- 50. 4 7 (c) (1) . The plain language of that regulation requires that ')
i' hearings on the adequacy of " compensatory" or " utility plan" under 10 C.F.R. S 50.47 (c) (1) be completed before any operating license -- either zero, low, or full -- may be issued. 1 l This mandate is clearly expressed in S 50.47(d), which is i the only regulatory provision that allegedly authorizes the J issuance of low power licenses prior to hearings and findings on the adequacy of offsite emergency preparedness. Section 50.47(d) , f provides that Notwithstanding the requirements of paragraphs (a) and (b) of this section, no NRC or FEMA review, findings, or determinations concerning the state of offsite emergency preparedness _or the adequacy of and capability to implement State and local offsite emergency plans are required prior to the issuance of an operating license authorizing only fuel loading and/or low power operations. 10 C.F.R. S 50.47(d) (emphasis added). Two aspects of this regulation operate to exclude Applicants' " utility plan" from the ambit of S 50.47(d). First, by its express terms, 5 50.47 (d) authorizes the issuance of low power licenses prior to hearings and findings under SS 50.47(a) and (b) on the adequacy of offsite emergency preparedness only where Applicants have submitted
" State and local offsite emeroency plans." That is not the case here.
Second, S 50.47(d) only purports to waive application of the I standards under SS 50.47(a) and (b). As the Commission recog-nized'in CLI-87-02, 5 50.47(d) plainly does not waive the
requirement of f 50.33(c) that " State or local plans" be sub-pitted. Nor does S 50.47(d) waive the requirements of 5 50.471cl. These three regulations, when read together, clearly command that S 50.47(d)'s waiver of the requirements of SS 50.47(a) and (b) only applies when " State and local" plans are submitted under S 50.33(g). Section 50.47(d) simply does not apply when utility plans are submitted under the standard of par-agraph Isl. Where Applicants submit " utility plans" in lieu of state and local plans, no low power license may be issued before the adequacy of a compensatory plan has been fully litigated as " required by 9 50.47 (c) (1) . This is the only reading that gives effect to all three regulations -- SS 50.33(g), 50. 47 (c) (1) , and 50.47(d). By the same token, permitting low power operation to commence after the mere submission of " utility plans" would be inconsistent with the plain language of SS 50.33(g), 50.47(d), and 50.47 (c) (1) , and would violate the basic principle that exemptions should, wherever possible, be construed narrowly. This is also the only reading of 5 50.47(c) (1) that is con-sistent with the policies underlying the emergency planning regulations. As the Commission plainly stated, "the emergency planning standards in 10 C.F.R. S 50.47(b) and Part 50, Appendix E are cremised uoon a hich level of coordination between the utility and State and local governments." Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, slip op. at 10 (emphasis added). A regulatory scheme that permits low L _ _ _ _ _ _ - _ -_ _ _ _ _ _ _ _
power operation after the good faith submission of " state and local" plans, is consistent with this stated policy, since the l existence of state and local governnent plans, prepared in l cooperation with, and carrying the endorsement of, all governmen-tal entities within the EPZ, can at least be said to justify a presumption that the emergency planning regulations will be met.
- In contrast, the submission of " compensatory" or " utility" plans under the alternative route of 5 50.47(c)(1) provides no reasonable basis for a presumption that the emergency planning standards of 55 50.47(a) and (b) will ultimately be satisfied.
To the contrary, the need to file compensatory plans establishes
.the opposite presumption. At best in this situation, there is great uncertainty about the eventual ability of an Applicant to meet the minimum requirements for emergency response considering the formidable legal and factual obstacles involved in establish-ing that such plans provide a " generally comparable level" of public protection to what would be achievable under state and local plans.20 See e.a. Iona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, Slip opinion (Septem-ber 18, 1987). Thus, the express reference only to " state-and local" plans in 55 50.33(g) and 50.47 (d) , and 5 50.47(d)'s 20 Even if the Commission adopts the proposed amendment to 5 50.47, Applicants will still be required to demonstrate in a hearing that the compensatory plan provides adequate protec-tion of the public health and safety.
a}h :p
' express ' fallure to w'aive = application of ~ S 50. 47 (c) (1) , or to refer to " compensatory".or " utility plans" as well as " state and local" plans reflects the sound' policy that the mere existence'or
- good faith submission ~of a.." compensatory plan" simply cannot pro-vide sufficient. assurance that'.the plans might: eventually be found adequate.or;that they'are capable of being implemented in
.the event-of a radiological emergency, to warrant issuance of a-
. low power license.
.This reading . of 5 50.47 (c) (1) is fully consistent with the 1
~ Commission's. decision in Shoreham (CLI-86-13). The decision in Shoreham, while-endorsing the notion that the Commission must t . consider " compensatory plans," does not address the issue of'the J timina of when:such a hearing'should be held. The question of 8
whether a low power license can be issued where Applicants have
.not complied with 9 50.33(g), and instead submit a " utility -j plan," presumably under the authority of 5 50.47 (c) (1) , is an l l
I issue of first-impression.
.In sum, where Applicants have failed to submit " State or local plans" as required by 5 50.33(g)', but instead go the route of submitting " compensatory" or " utility" plans under 5
- 50. 47 (c) (1) , the plain language of the Commission's regulations as well as sound policy reasons mandate that no low power license 5 50.47 (c) (1) be. issued until there are findings under 10 C.F.R.
l y 1 "that adequate interim compensating actions have been or will be taken promptly."21 q D. Applicants' September 18, 1987 Filing Does Not Satisfy the l i Requirements of 10 C.F.R. 5 50.33(g) because it is not a bona fide plan, and Because It Fails to Show That Adequate Emercency Action is Within the Realm of'the Possible
- 1. The Plan is Not Bona Fide.
1 Even assuming, arcuendo, that a compensatory plan is gov-1 erned by 5 50.33(g), Applicants' September 18, 1987 filing of a ' so-called " utility plan" does not satisfy even this threshold i requirement. The Commission, in CLI-87-03, set forth the follow-ing minimum requirements for issuance of a low power license based on the submittal of a utility plan: The very minimum for such a submittal would be a bona fide utility plan. An adequate filing in this case would be one r intended for actual implementation as a utility emergency plan, and one intended to be subjected to Staff and FEMA review and litigation on that basis. CLI-87-03, slip opinion at 6 (emphasis added). However, the Com-mission did not address whether a utility plan was " bona fide," since it found that the plan was not even a utility plan at all.22 l 21 The question of whether Applicants' " utility plan" satisfies the terms of 5 50.47 (c) (1) must be fully litigated in an adjudicatory hearing, providing Interveners with all the pro-cedural rights guaranteed under the Atomic Energy Act, as required by Union of Concerned Scientists v. U.S. Nuclear Reculatory Commission, 735 F.2d 1435, 1437 (D.C. Cir. 1984), cert, denied, 105 S.Ct. 815 (1985). See discusion at Part V, infra. j 22 CLI-87-03, slip opinion at 7. f -l
NECNP believes that this latest filing, too, fails to rise to the level of a " utility plan," and is therefore on its face, l not a bona fide submission. On its face, the Seabrook Plan for Massachusetts Communities ("the Plan") submitted by the Applicant on September 18, 1987 is utterly incomplete and lacking in key information, making it impossible to conclude that the plan is even intended for actual implementation. The following are.just a few of the most fla-grant ommissions:23
- 1. The Plan contains " redacted" letters of agreement with busing, ambulance and other transportation support companies.
Applicants claim that the redacted material has been withheld from the public pursuant to 10 C.F.R. 9 2.790 in order to protect the personal privacy of individuals and organizations needed to implement the Plan and certain members of the general public.24 However, since all the names and relevant accompanying informa-tion have been blacked out, there is no way to assure that any (continued) 23 See " Town of Amesbury's Answer in Opposition to Applicants' Motion for Vacation of Stay,' dated September (sic) 9, 1987, for a more comprehensive, but still not exhaustive, catalog of the Plan's deficiencies. 24 See Letter dated September 18, 1987, at 4. We have been unable to locate any authority in 10 C.F.R. 5 2.790 for with-holding information under a " privacy" claim that obviously must be disclosed when the plans are litigated.
lettersLof agreement have actually been signed.25
- 2. The Plan ~ purports to list congregate care, reception cen- ]
-ters,' transfer points, Emergency Operation Centers (EOCs), and staging areas; however, 7.out of the 9_ centers are blacked out.
Without this-information, it is impossible to' ascertain whether, Applicants have provided for a communications system of emergency operations centers for coordinating all emergency communications.-
- 3. The Plan also includes a censored list of three Emer-gency Broadcast Radio Stations; only one actually appears. From a list of four Federal, National or Private Agencies, only two
\
appear uncensored.- The Applicant fails to provide a reasonable explanation for this selective excision of crucial information.26
- 4. In'its letter to the NRC dated September 18, 1987, Applicants state that they have included "added personnel specif-ically to. accompany, advise, and directly provide resources to State and local officials in an actual emergency," and "added personnel to provide protective action support that otherwise would have been provided through State and local governmental preplanning," and "early, close, and continuing communications 25 Appendix C at C-2 thru C-58.
26 Appendix C, Index of Agreements, (ii). While Applicants again cite 10 C.F.R. 5 2.790 to justify the omission of this j information, this regulation provides no authority for pro-tecting a Federal, National or Private Agency from invasion of j privacy.
+ _ .. __
1
with members of the public in the EPZ to ensure that they are kept informed of the status and provisions for response." How-ever, Applicants have blacked out almost the entire section which would provide, assuming it existed, information on the identity of offsite emergency planning and coordinating personnel and the means to contact'them.27
- 5. The Applicants have completely redacted information on Host Facilities for schools and hospitals.28 In addition, they have censored all information relating to congregate care facilities. Without this information, there is no basis to assume that any arrangements have been made, much less to justify any presumption concerning their adequacy.
- 6. In the Applicants' " Motion for a Vacation of Stay,"
Applicants themselves identify five areas in which the Plan is incomplete. Applicants have failed to:
- a. obtain a letter of Agreement from the Department of Inte- l rior; l
- b. develop route maps for travel from reception centers to i
I congregate care centers;
- c. develop detailed internal facility plans for individual schools, hospitals and other special facilities; 27 Massachusetts Plan, Appendix H.
28 Massachusetts Plan, Appendix M. l l 1 l l
L-., ..
- i i
l: , d.. verify and; update the. ingestion-pathway data compiled for f
.the original' Massachusetts Radiological Emergency Response Plan;
- e. develop an'd implement alternate prompt alerting methods i
for the. city of.Newburyport which"has removed or disconnected its
.' community-owned. sirens.29
- 7. .Like.the previously submitted plan,-this latest' filing also contains information that is clearly wrong. For example, 3 0*
.this latest filing relies on Evacuation Time Estimates (ETE) 1 developed for New Hampshire offsite emergency plans.30 These.
.ETE's cannot'possibly provide an accurate' planning basis for the range of protective responses'needed for a completely different
. plan, involving new and:different evacuation route patterns, per-sonnel, traffic patters and geography. Applicants' failure to
. develop new ETE's'for the Massachusetts sector of the Seabrook 1
i ten-mile EPZ forecloses acceptance of the filing as a good faith, bona fide submission.
- 8. Finally,.one of the most glaring omissions from I
Applicants' latest filing is the complete absence of any protec- .
~
t 29 Applicants have claimed only that "there are technical fixes i for this problem," and they "are confident that they an put in
.effect'an; appropriate one." Applicants' Motion for Vacation of Stay, dated September 21, 1987, at 7 n.4. Such vague promises ,
can hardly "be subjected to Staff and FEMA review and litiga-tion on that basis," as required by CLI-87-03. 30 Massachusetts Plan, Section 3.6-2. i____________.__.____j_
. l.
I tive. measures-for sheltering the beach population in the. event of a sUiftly moving accident.31 In sum, even'the most cursory review, which is all that is possibleLin the brief two weeks that the plan has been submitted,
. demonstrates that Applicants so-called " utility plan" fails even to address many. critical elements of emergency planning. Fur-ther, as to those which it does purport to address, the plan has . l Lbeen so censored as to make it useless for implementation and incapable of meaningful review. It would be manifestly i impossible, as it stands now,.for this plan to be " subjected to Staff and FEMA review,"'as' required by CLI-87-03; likewise, an l i
plan'so lacking in vital information is not a plan intended for
; actual implementation. Accordingly, Applicants' latest filing is not a bona fide utility plan and must likewise be rejected out- ,
i of-hand. Applicants have cited in their motion two agency decisions that purportedly justify ignoring the numerous deficiencies.32 However, these decisions are inapposite. Both cases dealt with state and local government plans, and were therefore entitled to some presumption of validity accorded to plans developed in ! 31 See discussion in Part IV(D) (2) , infra. ! 32- Philadelphia' Electric Co. (Limerick Generating Station, Units , 1 and 2), ALAB-808, 21 NRC 1595, 1601 (1985), and Louisiana 1 Power and Licht Co. (Waterford Steam Electric Station, unit : ! 3)., ALAB-732, 17 NRC 1076, 1103 (1983). ] 1 i LJ l
e l ,
I I cooperation with the State and local governments. Here, however j the plan at issue is a " utility" plan, and therefore is entitled to no comparable presumption. Nor did the defects in question rise to the fundamental level involved here. I i Moreover,.in the cases cited by Applicants, the completeness l of ti;p plans was an issue raised during the course of determining ] whether a full power operating license should be issued, and f therefore, the plans had already been subjected to FEMA review, 1 { discov,ery, and litigation by the parties. Here, the plans were ; submitced a 1.tttle over two weeks ago, solely for the purposes of q satisfying what Applicants obviously view as a oro forma require- l ment for applying for low power authorization rather than for actual litigation; there is barely enough time for the parties to even read them, much less subject them to discovery and cross-examination. Accordingly, in this context, the only existing indication that the plan even exists, much less is bona fide, is 1 in the completeness of the initial filing. l If the omissions described above fail to convince this Com- l l mission that Applicants' latest filing is not bona fide, Inter- l Venors emphatically request additional time in order to more ; I thoroughly review the plan. Such a review must, of a necessity, i 1 include a review of information withheld or redacted by I Applicants, under a protective order, if necessary. Since l l
- - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _______a
.: 2 Applicants' good faith is what is at issue in this summary review, this Commission cannot rely on Applicants' claim that the redacted or withheld information even exists at all.33
- 2. Adequate Emergency Planning for Seabrook is Not Within the Realm of the Possible.
Even on this summary review, it is apparent that adequate emergency planning for Seabrook is not within the realm of the i
. possible. Applicants' have failed to identify any protective measures for sheltering the beach population in the event of a swiftly moving accident. The events surrounding this issue dur- .
I ing the course of litigating the New Hampshire plans indicate that this is not a mere oversight; rather, failure to provide for , this important dose reduction measure'of itself, demonstrates ) that " adequate cmcrgency planning is not within the realm of pos-sible." In this case, even if Applicants make some reasonable show-ing that the plan is bona fide, and intended for actual implemen-33 For example, the Commission rejected the plan submitted by Applicants' on April 8, 1987, because it constituted submis-sion "under a new cover" of a plan previously developed for execution by state and local governments " contained obsolete and wrong information that Do effort had been made to remove." CLI-84-03, slip opinion, at 8 (emphasis in original). Inter-venors do not lightly discount the possibility that the let-ters of agreements, identification of facilities and equip-ment, etc. withheld or redacted by Applicants could well be information previously developed on the premise of state and local government execution of the plan, and therefore, similarly obsolete.
l tation, as of now, there exists what is, in effect, an unprece- ! dented obstacle to full power licensing in the announcement of a neaative FEMA finding on the question of protecting the beach
- population.34 Under the Commission's own regulations, this find-ing constitutes a legal presumption that an adequate emergency response is not within the recim of possible for either the New Hampshire or the Massachusetts sectors of the Seabrook EPZ.35 The absence of any system in place for emergency notifica-tion in the town of Newburyport, Massachusetts, one of the com-munities located within the plume exposure pathway EPZ for Seabrook, also demonstrates that an adequate emergency response in Massachusetts is not within the realm of the possible. The
, previously-existing sirens, poles, and related equipment, have t-been dismantled or disconnected by the city, and there is no likelihood that the city will install new sirens, or any alterna-tive means of early notification. By their own admission, Applicants have failed to identify compensatory measures that can and will be taken to provide alternative, adequate early notifi-34 Ege " Current FEMA Position on Admitted Contentions on New Hamphsire Plans for Seabrook," at 39, responding to NECNP Con-tention RERP-8, attached as Appendix B to " Response of Federal L'mergency Management Agency to Massachusetts Attorney General James M. Shannon's Off-site Emergency Preparedness Inter-rogatories and Request for Production of Documents to FEMA (Set No. 2), dated June 4 1987.
35 10 C.F.R. 9 50.47 (a) (2) .
lZ : f 1
~i
- 39'-
cation inlthe event oflan emergency.36 As a result, Applicants
'will~be unable toLprovide the notification and instructions-required by' 10'C. F.R.- 5 10. 47 (b) (5) , a' requirement that the Com-mission itself has stated is a precondition to issuance of-a' low 1
power license.37-The feasibility of-implementing a utility plan at all is
- already questionable, at best. Obviously,.an adjudicatory hear-ing is absolutely critical.to identifying other aspects of Applicants' purported " utility plan" which fail to identify.any:
means for overcoming what now appear to be unprecedented and for- . midable obstacles to meeting the Commission's mandatory emergency planning requirements.
' V. Interveners are Entitled to A Factual Hearing on the >
' Question of Whether Applicants' " Utility Plan" Demonstrates:that Adequate Emergency Planning for :
Seabrook is Not Within the Realm of the Possible. i
.Should the Commission not rule that Applicants' " utility plan" is, on its face, neither bona fide nor intended for actual implementation, Interveners are entitled to a factual hearing prior to a finding that it is bona fide and intended for imple- l 1
mentation. Given the condition of this grossly incomplete and 36 " Applicants' Motion for Vacation of Stay," dated September 21, 1987, at 7. 37 Ste 47 Fed. Rec. 30232, 30234 (July 13, 1982), and Southern California Edison Co., San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 191-195 (1982). 4 i f.
censored document, no positive finding that it meets the minimum conditions set out by the Commission can be made on the basis of l l a summary review. While it is possible that the question of com-pleteness .;ay be resolved after some discovery on a summary judg-ment basis, clearly the present briefing schedule makes possible only the most superficial review of the plan documents; the fac-tual questions involved in assessing the effect of the obvious omissions of completeness cannot be adequately resolved in this brief time, and in the context of a non-adjudicatory proceeding. Moreover, the issue of whether this is a plan that is actually intended for implementation and for Staff and FEMA review and litigation clearly cannot be addressed at all in the context of this briefing schedule, which makes no provision for FEMA testimony or rebuttal. Second, it is clearly impossible to conclude that adequate emergency planning or response is "within the real of the pos-sible" on the basis of a summary review of the submitted docu-ments. Rather, because the question is highly factual, these plan documents muet be subjected to discovery, submission of evi-dence, and cross-examination in the context of an evidentiary hearing, in order legally to justify a finding in Applicants' favor. Under CLI-87-02 and CLI-87-03, the questions of whether a
t , ;
- w.. i I
1 b - 41:- plan is;" intended for actual implementation," and whether ade- , Equate public protection'is."within the real of the possible"- l
' i clearly involve hotly contested factual issues. Accordingly, j ,
.should the Commission not deny the. Applicants' motion out-right, Section 189(a)cof.the Atomic Energy Act guarantees Interveners a. ]
prior h' earing on issues of material fact. Union of concerned Scientists v. Nuclear Reculatory Commission,-735 F.2d 1437 (D.C. Cir. 1984). f VI. Sound Policy Does Not Support Permitting Low Power Operation l Considering All' of the Circumstances of this Case j
~
As the Commission has recognized in its earlier rulings on- l Seabrook, the decision as to whether to permit low power opera-
]
tion of.this plant requires the consideration of factors of J f'
" sound policy." CLI-87-02, Slip. Op. at 6. In thic caso, there are several important and unprecedented factors bearing on.that
~
l policy decision which,-due to the fragmented nature of the decision-making in this proceeding, can at this time be weighed ) i i only by the Commission. l l First, as noted above, the Appeal Board has just reversed i 4 and remanded in part the underlying Licensing Board decision on j
?
on-site and safety issues which provided the essential basis for low power operation.38 It has ruled that NECNP is entitled to 38 ALAB-87 5.
-1 l
l
q' l
,E V i 42.- 9
. s- .fi hearings on two .important safety issuesMrrongly rejected by .the Licensing Board'and that a. third safety issue must be at least
- reconsidered and perhaps reopened. Thus, the status of this pro- i ceeding has been altered in'a' fundamental way: emergency pla'$ning questions aside, therer is no longer a valid Licensing Board deci-I sion on safety issuec which provides a basis for low power opera-
~
' tion. Therefore, even.if t'his commission lifts its stay, a low !
'9 1 l power license cannot be granted unless the Licensing Board issues j a decision justifying low power operation eendente lite and the-a 7
,4 parties have a ten-day' opportunity for appellate review. Id. at i 49-50. ,
e Second, entirely;1pr t from the questions surrounding the-utility compensatory plan for Massachusetts, FEMA has announced j t its unprecede$ted. view thdt, due to the unique demographic and 1 I geographic aspects of the Seabrook site, it cannot find the plan I submitted by New Hampshire for that state's portion of the EPZ to 6
^
l, provide adequate protection of the public health and safety and inparticularthelargef:eac'hpopulationclosetotheplant. FEMA's view have the special status under NRC rules of a rebut- ) table presumption.39 While it is possible for Applicants to overcome this presumption, such a rebult would be unprecedented 1 This is because FEMA's
~and'the obstacles yre formidable indeed.
4 39 10 C.F.R. 5 50.47 (a) (2) , o Y----_-_-...--__-_.__._ -_-
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_ 43 _
, e f( -objections' rest on the failure to meet some technicality of plan-
>g "'
- ning or to fill in some~ blanks; on the contrary, they are rooted in the same immutable characteristics of this site that have:
fueled the Seabrook controversy from its earliest days. f'. Third, PSCNH, the lead App /licant, has all but announced its Limpending bankruptcy. .It has stated that it will cease making W' , :( It would be utterly
.interestypayments on its debt next, week.
irresponsible for the NRC to grant.a license to operate at.any power level to'a. utility which.is_by its own admission on the eve of bankrup'tcy. However one r.ay interpret the provision of the L Atomic TJnergy Act which authorizes the agency to require a
.V P ,
' ;dem$nstratibn of the " financial-(qualifications" of Applicants,40
- - , i i' "
o 2 there must' surely be an irreducible minimum requirement that l precludes permitting bankrupt entities to be granted licenses,
.). i .
l l .The protec;t, ion of the public safety should not be in the hands of
'( ,
l a comp'ny a in sdcirdesperate financial condition that it cannot l meet itsjoblig'ations and must seek the protection of the
' .{
l Bankruptcy Co'r' u I L i Also relevant to this issue is the question of what entity would be liaNie for the costs of decontaminating the plant and restoringThe\Seabrooksiteshouldalicensenotultimatelybe The, bond and mortgage holders, whose loans are secured l granted. I t, t h ; - -,.
- V
' 40 42 U.S.C. .5 2232(a).
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the, + c: :. e-q_g , T c ,gs.: , e r ,, u,. s . V i, V '
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's
- 44 .l.t i 7
bythetfacility,canhavenophabilifj'beyondwhaytheyhave
.,; & ,s y l- already paid.- Thus, low power operation would create potential 1 , t financjal obligations for' M ich there is no clear responsible Q y
'} l y ,
% n) entity. PSCNH'q flippant reply to the Staff's questions on this
. 7'(
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j'
. score was neither responsive nor yeaksuring. ); ;)3 r'
{ . .) d [. ., In concliision, considering a Al of the circumstances here,
. D... 3 there is no justification for lifring j the si'ay on low power. ,
( \ L
\ Seabrook poses a host of-difficun,t. issues, whi'ch ,ut across j '-
vir-
) (P
'Y tually every aspect of licensing. Several of the.se issues Fare J.
y s h unprecedented and will take the agency into uncharted waters. If
'1
- 'd this plant is to go into operation, it should be after those .
questions are resolved, not before. Seabrook is not a case for
; '/ r ' ,
- i. circumventing full review. '
s l %:V , l; i i Respectfully submitted,
'l g :' ,
p... Andrea Ferster fd Diane Curran + ~'
, HARMON.& WEISS
/.'
2001 S Street, N.W. Suite 430
- Washington, D.C. 20009 (202) 328-3500 October 9, 1987 !
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' CERTIFICATE OF-SERVICE.
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'I certify thatJon October 9, 1987, copies of this. pleading-m ..
were servedsby first-class mail or as otherwise indicated:on the !(yE-) , ';-; parties-' to .the ' attached service list. e h> f. Andrea Ferster. i 4
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Washin; ten, D.c 20!!! Alfre: V. Sarger,t, Chaittan H. Jcseph f;,ynn, tsq. hki tI5 pt4M FEN! Bond :f telecteen Office cf General Counrel Alan ! Rosenthal,Chairtan Dr Eueth A. Luede Ice cf Salist<ury, MA 01950 FEMA Atout Safety f, Licensing Ato:ic Safety and Licensing Ed 500 C Street S.U. Appeal Board ; U.S. GC S m t P br hn J. Huc hrn Washingtcn,D.C. 204'? U.S. GC ! Washington,D.C. 20555 U.S. Ser. ate Washington, D.C. 20555 Washington,D.C. 20510 George Dana Eist>ee, Esq. Atork taff ty rd licenfing I Attn. I0t hrad) Geoffrey M. Huntington, Esq. W ard A. Will:er
'EcardIpel Office of tre Attorney 3enera! At':. Safety & Licensing U.;. G Sele tun of .trthrat;n State H0;;e u m Ar; L hard Washington,D.C. 20555 Ncrtha:pton, New Hacpshire Concord,NH 0330] 3 HEC 03S26 Washington,D.C.20555 AtcaicSafetyandLicenting AllenLacert AppealBoardFanel Senator Gordon J. Hutphrey CivilDefenseDire:ter GaryJ.Edles U.S. NRC 1Eag!e!quare.Ste507 TownofErentcuood Atonc Safety & Licensing Washington,D.C. 20555 Concord, NH 03301 Exeter,NH E3833 A; teal Ecard U.S. NF,C Dodeting and Service MichaelSantosuosso,Chairran Richard'A. Harpe, Esq. Washington, D.C. 20555 U.S. NFC BoardofSelectsen Hat;&andM: Nicholas
' can W uch,Ctsire;n k m.gt ni i.C. 20555 Jc U! Street, EF: 12 35 Thasant 5treet Scuth Hazpton, NH 03842 Concord,NH 03301 U.S. NRC Mrs. Anne E. Goodean Kathin; ton, D.C. 20555 feard of Sele:tten Judith H. Mitner, Esq. Gary W. Holtes Esq. 1 H 5 New Market road Silverglate,Gertner,etal. Holmes &Ellis 8]ates K. Asselstine, Cenis-Durhat,NH 03042 80 Eroad Street 47 Winnatunnent had Sioner i E0 sten MA 02110 Haspton, NH 03042 U.S. NEC Willias S. Lord, Selectsan Washington,D.C.20555 Town hall - Friend Street Rep. htrerta C. Fevear WilliatArmstrong Asest< cry, MA 01913 Drithater Eoad CivilDefenseDiretter H enneth M. Carr, Cc u issioner Hatpton, Falls,NH 03844 10 Front Street U.S. NRC Jahe D ughty Exeter,NH 03833 Wathin ton, D.C. 2C555 SATL Thillip Ahrent, Esq. 5 Marlet Street AstiftantAttorneyGeneral Calvin A. Canney 4Thccts M.' ht.erts, Conis-Fortssouth,NH 03801 State House, Station i 6 City Mana;er sioner Au;urta, ME 04333 CityHall U.S. NRC Carcl S. Sneider, Esquire 12t,DanielStreet Washington, D.C. 20555 i Assistant Attctney General **Thoras G. Dignan, Esq. Fortstocth, NH 03801 ! 1 Ashturten Th:e, litt Floor E.t. Gad II, Esq. 'Fredr:ct M. fernttal, Cct- I forton,MA 02!03 Fo;t! t Gray Matthu T. Erod, Fis. sitsioner ! 225 h O lin Street Shaines f. r En ha n 9.5. NEC l Stenje,K.rn;dr? ft: ten MA 02110 F.0. Br M .afbn ; ton, T.C. :T"5 j Eoarc f w!ettun M a; ! v. c ., A .w . _ _ _ _ _ _ _ _ _ _ _ F.0. fas 710 Re:srt A. !adut. !!q. Portstouth, W D 01 i fy nand , karth P!t;;c . M 03!2t fa;i;t. Meyer & h i'- v, it f3 federa: E ;ters ;
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