ML20236C094
| ML20236C094 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/16/1987 |
| From: | Jonas S MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#487-4634 ALAB-875, OL-1, NUDOCS 8710270011 | |
| Download: ML20236C094 (11) | |
Text
-___
hd 3([
00LKETED V5NRC 1g an 20 P2 57 -
UNITED STATES OF AMERICA
^
(gC iG Vl NUCLEAR REGULATORY COMMISSION BRAMCH
)
In the Matter of
)
)
Docket Nos.
50-443-OL-1 PUBLIC SERVICE COMPANY OF
)
50-444-OL-1 NEW HAMPSHIRE, et al.,
)
(On-site Emergency l
Planning and Safety (Seabrook Station, Units 1 and 2) )
Issues)
)
October 16,1987 ATTORNEY GENERAL JAMES M.
SHANNON'S l
PETITION FOR REVIEW OF ATOMIC SAFETY AND LICENSING APPEAL BOARD DECISION OF OCTOBER 1, 1987, ALAB-875 1
l Pursuant to 10 C.F.R.
S2.786(b), Massachusetts Attorney General James M. Shannon
(" Petitioner") hereby petitions the Nuclear Regulatory Commission for review of the October 1, 1987 decision of the Atomic Safety and Licensing Appeal Board
(" Appeal Board") in this case.
A.
SUMMARY
OF DECISION The decision of which review is sought is Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-875 (October 1, 1987).
ALAB-875 is the decision of the hajO270011 871016 ADOCK 05000443 g
')gQ)
PDR l
7__--_ - _ - _ -
y
)
su i
1 l
4 Appeal BoardLon the. appeals of the New England Coalition on x
Nuclear Pollution,'the: Seacoast Anti-Pollution League and'the 1
Town'of'Hampton, New Hampshire,1from the Licensing Board's March 25, 1987,. Partial Initial Decision in the on-site.
j emergencyfplanningLand safety phase cf thefSeabrcok operating-license' proceeding.. In'thatJdecision, thel Licensing Board -
1 authorized.the issuance of a license for low-powermoperation 1
(up to 5% of rated power).
B.
THE MATTERS RAISED IN THIS PETITION WERE RAISED BEFORE THE l
APPEAL BOARD.
4 The. Attorney General and Interveners advanced several I
claims before-the Appeal' Board..The claims raised by the Attorney' General here were addressed by theJAppeal Board.in Parts A, B:and E of ALAB-875.
The Appeal: Board affirmed the Licensing Board'and rejected eachfof the Attorney General's
)
claimh(
i Each of the claims-raised by the' Attorney General here were j
1 raised before-the Appeal Board in Attorney General James'M.
Shannon's Brief In Support Of Reversal Of Licensing Board's Partial Initial Decision Authorizing Issuance Of A Low-Power
- Operating License, filed on May 6, 1987.
3/
The Appeal Board accepted some of the claims of the other In tervenors, requiring reversal of and remanding to the L. censing B oard.for further proceedings.
See ALAB-875 at 48.. _ _
4
'l.
F, i
C.
THE DECISION OF THE APPEAL BOARD ON THE MATTERS RAISED BY THE ATTORNEY-GENERAL HERE IS ERRONEOUS.
1.
10 C.F.R. S50.47(d) And Waiver Petition.
j The Attorney' General argued below that.10'C.P.R. S50.'47(d)
. deprives-the Commonwealth of Massachusetts of the. hearing l
1 rights guaranteed under section 189(a) of the' Atomic Energy:Act
,("Act"), 42 U.S.C.
S2239(a), and is, therefore, invalid. The Attorney General also argued-below that the Licensing Board.
erred in denying his petition for a waiver'under.10 C.F.R' I
S2.758 of thefapplication of section 50.47(d)'to this case.
In Part A of ALAB-875, the Appeal Board.found that it did not have the authority to. strike down section'50.47(d')'and affirmed the Licensing Board's denial of the waiver petition.
i Section 50.47(d) authorizes the issuance of a low-power operating license in advance of NRC hearings or findings on off-site emergency planning' issues.
It is invalid because it is inconsistent with section'189(a)'of the'Act which. guarantees:
interested parties a hearing on all emergency planning issues I
prior to granting.any operating license.
Moreover, the Attorney General's waiver petition should i
have been. granted, and the Appeal Board's affirmance of the Licensing Board's decision on the petition is erroneous.
The Applicants face serious and probably insurmountable obstacles i
l to full-power operation because Massachusetts has not and will
)
j not participate in off-site emergency planning for Seabrook.
]
1 i 4 1
l
1*l 4
Low-power' operation produces the-benefits' ostensibly; justifying section 50247(d)fonlyRif full-power operation follows.
In'any c
event,' low-power operation will irradiate the plant and fuel 1 rods.
Any'possible benefits to' low-power operation in this
- case are far outweighed by the significant adverse' consequences-
~
- of such operation.
Therefore, the special' circumstances.of this case'are such that application of section 50.47(d) here would not serve the purpose of the regulation.
' 2.
Supplemental-EIS.
In Part B'of ALAB-875 the Appeal-Board rejected the i
Attorney' General's argument that changed circumstances since the' December, 1982. Final Environmental Statement ("FES") for Seabrook require a separate or supplemental environmental Jimpact statement ("EIS") which addresses low-power operation
'before a license.-for that operation issues.-
The Appeal Board's decision'was erroneous.
In September, 1986, Me,ssachusetts Governor Michael S.'Dukakis' announced that' Massachusetts would not participate in emergency planning for Seabrook.
The non-participation of the Commonwealth makes full-power licensure for Seabrook exceedingly unlikely and.is a " changed circumstance" under the National Environmental l
l Policy'Act since the December, 1982 issuance of the FES.
Therefore, the'NRC is obligated to prepare a separate or supplemental EIS comparing the substantial environmental costs of low-power testing against its' limited benefits given the l
t
' unlikelihood-of full-power operation.
l 1
l 4 )
'Whh---_-_---___.m_.
.m h
'0, i
3.-
'Ina'dequacy of FES Consideration Of Class 9 Accidents.
The: Attorney: General argued'that.the FES was inadequate'in i
its discussion of the~most serious accidents,'Known as " Class 9"' accidents.2,7 7n'Part E of ALAB-875 the Appeal Board rejected the claim.
q The:AppealiBoard's dec'ision on this matter was erroneous because the.FES-is-inadequate in its discussion of Class-9 accidents.
First, the consequence analysis fails to estimate the: consequences of a major accident and instead depends entirely on an estimate of probabilities per reactor year.
Second, the FES does not estimate early fatalities in the-event of a major accident where evacuation is' unavailable -- a particularly. egregious deficiency for a plant located in-an area where evacuation is so protracted and difficult.
- Finally, the FES does'noticontain a reasonable consideration of the possible consequences of sabotage at Seabrook.
In each of these-respects, the FES does not meet the standards of the Commission's June 13, 1980 Interim Policy Statement on environmental impact statements.
D.
COMMISSION REVIEW SHOULD BE EXERCISED IN THIS CASE.
Commission review is essential for three reasons.
- First, the errors of the Appeal Board are clear and affect substantial 2/
The Licensing Board reviewed cross-motions for summary disposition of this issue, granted the Applicants' motion and denied the motion of the Seacoast Anti-Pollution League.
ALAB-875 at 30-31. )
l
i a
- ' w La
.issuesfin this. litigation --lthe hearing rights accor'dedithe Attorney General'and. Interveners.on off-site emergency planning n
,31ssues,tthel scope'of the FES and its treatment of low-power
. testing.
A!different ruling on-these issues:would likely alter
.the outcomeJofuthellow-power proceeding.
In particular,.if a i
hearingLwere. held =on off-site emergency planning issues before
.theilow-power license issued,.the virtual impossibility of
. meeting 1the Commission's regulations on'off-site emergency
- planning would prevent-issuance of the license.
Second, -the petition illustrates a serious flaw.in the p
Commission's own, regulation and-in a case in.which the effects.
l of'that flaw are particularly pronounced.
Therefore, the l
petition involves'an important' procedural. issue appropriate for.
I review under 10 C.F.R.fS2.786(b)(4)(1).
Finally, the Appeal Board ruling _ moves Seabrook closer to low-power testing.
The testing would irradidate the plant and fuel rods for the'first time.
If full-power operation does not.
i l
occur, low-power testing will create high-level radioactive waste for which there is presently no. suitable disposal site and turn the plant into a radioactive waste storage facility.
.The Commission is thus faced with "an important matter that could significantly affect the environment," again making.
review appropriate under 10 C.F.R.
S2.786(b)(4)(i).
It is also faced with the important public policy question, recognized by the Commission in its April 9, 1987 Memorandum and Order in this case, whether a low-power license should be issued where
W l
there exist "truly insuperable obstacles to issuance of a l'
I license for operation at any substantial power level."
Public l
Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
l-CLI-87-02 at 6 (April 9, 1987).
See 10 C.P.R.
S 2.786(b)(4)(i)
)
(petition for review may be granted where it raises important questions of public policy).
1 E.
CONCLUSION Por all the foregoing reasons, the Petition for Review should be granted.
Respectfully submitted, JAMES M.
SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS
'O'.-
' Step 6en A.pdonas i
Assistant Attorney General I
Deputy Chief Public Protection Bureau
)
Office of the Attorney General l
One Ashburton Place Boston, MA 02108 (617) 727-4878 DATED:
October 16, 1987 l
l l
4601C - ___-_____ _
>e,
.as 3
)
"eW s
UNITED STATES OF AMERICA
~'
NUCLEAR REGULATORY COMMISSION k.E E f 0FFICE 4fiSECRETARY.
SOCKETINC44iERVICE
)
-BRANCH
' In.the Matter of
)
)
.PUBLIC SERVICE COMPANY OF NEW
)
Docket No.(s)
HAMPSHIRE
.)
50-443-OL-l a
(Seabrook Station, Units l-and 2
)
50-444-OL-1 i
)
)
CERTIFICATE OF SERVICE I,-Stephen Jonas, hereby certify that on October 16, 1987 I 1
- made' service of ATTORNEY GENERAL JAMES M. SHANNON'S PETITION =
FORIREVIEW OF ATOMIC SAFETY AND LICENSING APPEAL BOARD DECISION OF OCTOBER 1,'1987, ALAB-875, by mailing copies'thereof, LpostageEprepaid, by first class mail, or as indicated by an I
asterisk, by Federal Express mail, to*
f i
'*Lando W.
- Zech, Jr.,' Chairman.
- Thomas M. Roberts, Commissioner U.S. Nuclear 1 Regulatory Commission U.S. Nuclear Regulatory Commission;(
East West Towers Building East. West Towers Building i
4350 East West' Highway 4350 East West Highway Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814
- Kenneth C.
Rogers, Commissioner
- Frederick M. Bernthal, Commissioned U.S.' Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Bast West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway
)
. Third Floor Mailroom Third Floor Mailroom
]
Bethesda, MD 20814 Bethesda, MD 20814
- Kenneth M. Carr,. Commissioner Alan S.
Rosenthal, Chairman j
-U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissions East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Third' Floor Mailroom Third Floor Mailroom d
Bethesda,.MD 20814 Bethesda, MD 20814 i
_ _ _
l
)
-. ~
I Gary J. Edles.
Howard A. Wilber U.S.
Nuclear' Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H. Street 1717 H. Street Washington, DC 20555 Washington, DC 20555 l
l Sheldon J. Wolfe, Chairperson Ivan W.
Smith, Chairman U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H. Street 1717 H.
Street Washington, DC' 20555 Washington, DC 20555 Dr. Emmeth A.
Luebke Dr Jerry Harbour U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission 1717 H.
Street 1717 H.
Street Washington, DC 20555 Washington, DC 20555 H.. Joseph Fiynn, Esq.
Stephen E.
Merrill Assistant General Counsel Attorney General Office of General' Counsel George Dana Bisbee, Esq.
Federal Emergency Manager.ent Agency Assistant Attorney General 500 C Street, S.W.
25 Capitol Street Washington, DC 20472 Concord, NH 03301 Docketing and Service Paul A.
Fritzsche, Esq.
U.S. Nuclear Regulatory Commission Office of the public Advocate 1717 H.
Street State House Station 112 Washington, DC 20555 Augusta, ME 04333 Roberta C.
Peaver Diana P.
Randall
' State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 1
Drinkwater Road Hampton Falls, NH 03844 Atomic Safety & Licensing Robert A.
Backus, Esq.
Appeal Board Panel Backus, Meyer & Soloman j
U.S.
Nuclear Regulatory Commission 116 Lowell Street 1717 H.
Street P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Sherwin E. Turk, Esq.
Judith H.
Mizner, Esq.
Office of the Executive Legal Silvergate, Gertner, Baker Director Fine, Good & Mizner U.S.
Nucler Regulatory Commission 88 Broad Street renth Floor Boston, MA 02110 7735 Old Georgetown Road Bethesda, MD 20814 l
l r
l
4
),
Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S.
Nuclear Regulatory Commission 5 Merket Street 1717 H.
Street Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq.
J.P.
Nadeau Matthew T.
Brock, Esq.
Board of Selectmen Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 P.O.
Box'360 Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A.
Canney Board-of Selectmen City Manager RFD 1, Box 1154 City Hall Route 107 126 Daniel Street E.
Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J.
Humphrey Peter J. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton)
Newburyport, MA 01950 Donald E.
Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 Brentwood Board of Selectmen Gary W.
Holmes, Esq.
RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Ninnacunnet Road Hampton, NH 03841 Philip Ahrens, Esq.
Diane Curran, Esq.
Assistant Attorney General Harmon & Weiss Department of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 August, ME 04333 Thomas G.
Dignan, Esq.
Richard A.
Hampe, Esq.
R.K.
Gad III, Esq.
Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 Boston, MA 02110 Beverly Hollingworth Edward A.
Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 442 J.W.
McCormack (POCH)
Boston, MA 02109
William Armstrong.
. Michael Santosuosso, Chairman
'l
- Civil DefensefDirector Board of Selectmen Town of.EXeter Jewell Street, RFD 2 10iFrontJStreet South Hampton, NH 03827 Exeter, NH 03833 Robert 1Carigg, Chairman Ann E.-Goodman, Chairperson Boa'rd of Selectmen' Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH-03824 North Hampton, NHL 03862-A11en1Lampert Charles P.. Graham, Esq.
Civil Defense Director McKay, Murphy and Graham
-Town /of.Brentwood Old Post. Office Square.
'20 Franklin Street 100 Main Street Exeter, NH 03833 Amesbury, MA 01913 Rep. Edward J.
Mark'ey, Chairman Gustave A.
Linenberger, Jr.
U.S.. House of Representatives Atomic Safety & Licensing Board Subcommittee on Energy Conservation U.S.
Nuclear Regulatory Commission and Power 1717 H.
Street.
Room.H2-316 Washington, DC 20814 1 House Office Building-l
- Annex No. 2 l
Washington,~DC 20515 Attn:
Linda Correia StepbnA. Jonrf Assistant Attorney General Deputy Chief, Public Protection Bureau Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 l
(617) 727-4878 1
DATED:
October 16, 1987 l
0361n l
l W
i
!