ML20236H544

NRC Staff Response to Atty General,Jm Shannon,Petition for Review of 871001,ALAB-875.* Certificate of Svc Encl

ML20236H544
Person / Time
Site:	Seabrook
Issue date:	11/02/1987
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4734 ALAB-875, OL-1, NUDOCS 8711040188
Download: ML20236H544 (15)

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r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .g7 @V ~2 P5 :29 DEFORE THE COMMISSION gTF c . p, g. .,

9gyfj!DivIt't.

In the Matter of )

) Docket Nos. 50-443 OL-01

) 50-444 OL-01

- PUBLIC SERVICE COMPANY OF On-site Emergency Planning NEW HAMPSHIRE, et al. )

) and Safety issues (Seabrook Station, Units 1 and 2 )

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l NRC STAFF RESPONSE TO ATTORNEY GENERAL. J AMES M. SHANNON'S PETITION FOR REVIEW OF ATOMIC SAFETY AND l.lCENSING APPEAL BOARD DECISION OF OCTOBER 1,1987, ALAB-875 Gregory Alan Berry Counsel for NRC Staff November 2,1987 ho [h 3 01 e

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION ,

DEFORE THE COMMISSION in the Matter of )

) Docket Nos. 50-443 OL-01 l

. PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 l NEW HAMPSHIRE, et al. ) On-site Emergency Planning i l ) and Safety issues I (Seabrook Station, Units 1 and 2 )

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I m u s w m n a u ~,s w.e c., ,- ,c,.

NRC STAFF RESPONSE TO ATTORNEY GENERAL. JAMES M.- SHANNON'S PETITION FOR REVIEW OF ATOMIC SAFETY AND LICENSING APPEAL -

BOARD DECIS.lON OF OCTOBER 1,1987, ALAB-875 i

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, Gregory Alan Berry Counsel for NRC Staff November 2,1987

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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION I BEFORE THE COMMISSION in the Matter of ) l

, ) Docket Nos. 50-443 OL-01 {

PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 i NEW HAMPSHIRE, et al.

) On-site Emergency Planning

) and Safety issues (Seabrook Station, Units 1 and 2)' )

NRC STAFF'S RESPONSE TO ATTORNEY GENERAL JAMES M. i SHANNON'S PETITION FOR REVIEW OF ATOMIC SAFETY AND l LICENSING APPEAL BOARD DECISION OF OCTOBER 1,1987, ALAB-875 j i

INTRODUCTION On October 16, 1987,. the Attorney General for the Commonwealth of )

Massachusetts (" Petitioner") petitioned the Commission to review the Appeal Board's decision in A LA B-875. 1I Attorney General James M.

1 Shannon's Petition For Review Of Atomic Safety And Licensing Appeal Board's Decision Of October 1, 1987, A LA B-875 (October 16, 1987) 1

(" Petition") . In that decision, the Appeal Board affirmed in part and  !

I reversed and remanded in part the Licensing Board's concluding initial j decision in the onsite emergency planning and safety issues phase of this '

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operating license proceeding. As explained below, Commission review of ALAB-875 is not warranted because the petition does not set out "an important matter that could significantly affect the environment, or . . .

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~1/ Public Service Company of New Hampshire (Seabrook Station, Units 1  ;

and 2), ALAB-875, 26 NRC (October 1,1987) . '

-2/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-10, 25 NRC (March 25,1987) ,

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i an important procedural issue, or otherwise raise important questions of public policy." Accordingly, the Petition for Review should be denied.

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LEGAL STANDARDS Petitions for review, and responses in opposition, must satisfy the requirements of 10 C.F.R. 6 2.786(b)(2). Those requirements are:

1 (l) A concise summary of the decision or action of which review is soucht; i l

l (ii) A statement (including record citation) where the matters of fact or law raised in the petition for review were previoulsy raised before the Atomic Safety and Licensing Appeal Board and, if they were j not why they could not have been raised-l (iii) A concise statement why in the petitioner's l view the decision or action is erroneous; and l (iv) A concise statement why Commission review should be l exercised.

l 10 C.F.R. 52.786(b)(2)(i-Iv). The Staff will address each of these points seriatim.

DISCUSSION A. Summary of ALAB-875 l ALAB-875 is the Appeal Board's decision on the appeals taken by Petitioner and two other interveners b from the Licensing Board's j concluding initial decision in LBP-87-10. In LBP-87-10, the Licensing Board resolved the issues r, elating to onsite emergency planning and

-3/ New England Coalition on Nuclear Power (NECNP) and Seacoast Anti-Pollution League (SAPL).

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9 safety issues favorably to Applicants and authorized the Director of the ,

Office of Nuclear Reactor Regulation (NRR), upon making the findings required by 10 C.F.R. 6 50.57, to issue low-power operating license for the Seabrook Station. S With the exception of two late-filed siren contentions 5_/ , the Appeal Board rejected all of the arguments of the AG and SAPL and affirmed LBP-87-10 in those respects. With respect to the l arguments raised by NECNP, the Appeal Board agreed with NECNP that the Licensing Board had erred in rejecting two contentions sponsored by NECNP and directed the Licensing Board to reopen the proceeding and I

admit those contentions for litigation. A LA B-875 , slip op. at 48. The Appeal Board also agreed with NECNP that the Licensing Board's concluding initial decision did not adequately explain the bases for concluding that a particular type of cable (RG 58 coaxial cable) used by Applicants was environmentally quallfled and remanded the matter to the  ;

l Licensing Board for further action. Id. )

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l -4/ The Director of NRR did not and has not issued a low-power j operating license for the Seabrook Station because he was enjoined j

from doing so by the Commission on January 9, 1987, pending i Commission review of ALAB-853. That stay continues in effect. See ,

G Ll-87-02 , 25 NRC (April 9, 1987); C L I-87-03 , 25 NRC (June 11,1987) . j i

-5/ The Appeal Board did not resolve the issue of whether the Licensing Board correctly denied the petitions to reopen the record to consider I these two late-filed contentions (one filed by Petitioner, the other by  !

SAPL) . Instead, the Appeal Board retained jurisdiction over the issue and deferred making a final determination pending further testing of the sirens involved. See ALAB-875, slip op, at 43-48.

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B. The Matters Raised in The Petition '

Were Raised Below 1

Petitioner asks the Commission to review three of the four issues it j raised before the Appeal Board. First, Petitioner asks the Commission to consider his argument, already rejected by the Licensing and Appeal Boa rd s , that a separate Environmental impact Statement (EIS) must be prepared before a low-power license may be issued. Petition at 4. -6/

Second, Petitioner requests the Commission to reverse the Appeal Board's determination that the Licensing Board properly denied his petition for a j waiver of 10 C.F.R. 9 50.47(d), the Commission's regulation which allows i 1

the issuance of a low-power license prior to the resolution of offsite i emergency planning issues. Petition at 3. 1 Finally, Petitioner challenges the Appea! Board's determination that the discussion of the j risks of severe or " Class 9" accidents in the Seabrook Final Environmental Statement (FES) complied with appilcable requirements. Petition at 5. 8_/

-6/ Petitioner raised this argument below in his appeal. See 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 at 5 (May 6, 1987) ("May 6, 1987 i B rie f") . The Appeal Board addressed this argument in ALAB-875 at l slip op.10-13.

l -7/ This argument was raiseil by Petitioner in his May 6, 1987 Brief at 29 and was rejected by the Appeal Board in ALAB-875 at slip op.

5-9.

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8/ Petitioner raised this argument in his May 6,1987 Brief at 25. The Appeal Board rejected this claim in ALAB-875 at slip op. 29-35.

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9 C. The Appeal Board Correctly Decided The issues Raised in The Petition For Review

1. The Need For A Supplemental EIS.

Petitioner argued below that the resultant uncertainty surrounding the future full-power operation of Seabrook engendered by the Gavernor

. of Massachusetts failure to submit emergency response plans for his state l obligated the Staff to prepare a supplemental Environmental Impact Statemeat (EIS) in which the costs and benefits of low-power operation were weighed. May 6, 1987 Brief at 9-11. The Appeal Board rejected this argument, stating:

The principal and decisive difficulty with this line of argument is that, as observed in our stay decision [ ALAB-865, slip op. at 14-15), it was examined and rejected in the Shoreham proceeding not merely by the Commission but by the Court of Appeals for the District of Columbial Circuit as well.

ALAB-875, slip op, at 11 (footnotes omitted). In this regard, the Appeal Board observed that the Commission had considered a similar claim and held that "we do not believe that uncertainty over the pending full-power issues mandates a Supplemental Environmental impact - Statement or some renewed cost / benefit analysis." ALAB-875, slip op, at 12, quoting, Long Island Lighting Company (Shoreham Nuclear Power Station ), CLi-85-12, >

21 NRC 1587, 1589 (1985). The Commission noted in Shoreham that to 9 1

refuse to authorize low-power operations because of uncertainty over l whether a full-power license ultimately would issue would have the effect of repealing .sub silentio 10 C.F.R. 9 50.57(c), the Commission's regulation which " allows lowvpower operation when there is reasonable assurance that it will present no undue risk to the public health and safety notwithstanding the pendency of full-power issues." 21 NRC at 1590-91. According to the Commission, section 50.57(c) reflects the 1

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Commission's considered judgment . "that the benefits of early low-power testing outweigh the uncertainty that a full-power license may be denied."

Ic! . at 1591. Thus, the - Appeal Board correctly determined that any uncertainty over the authorization of full-power operations caused by the refusal of the Massachusetts Governor to submit emergency response plans for his state did not necessitate the preparation of a supplemental EIS which weighed the costs and benefits of low-power operation. 9/

2. The Petition For Walver Of 10 C.F.R. 9 50.47(d).

The Licensing Board denied the Petitioner's petition for a waiver of section 50.47(d), the Commission's regulation which permits low-power operations prior to the resolution of offsite emergency planning issues, 3 because it determined that Petitioner had not made a prima facie case that )

l application of that regulation would be serve the purposes for which it had been promulgated. The Appeal Board correctly upheld this ruling.  !

See . ALAB-875, slip op. at 5-6. Petitioner had argued that because I

full-power operation might not commence for at least a year, if ever, no. j useful purpose would be served by authorizing low-power testing far in advance of full-power operations. The Appeal Board did not agree, stating "as the Commission itself has laid bare, experience teaches that early testing may fulfill its intended purpose of avoiding possible delay in-full-power operation even if conducted a year or more in advance of the earliest time at which such operation might be authorized." A LA B-875, slip op, at 9. See Shoreham,, supra, CLI-85-12, 21 NRC at 1590 and n.3.

o 9/ As the Appeal Board recognized, it was not at liberty to disregard this square holding of the Commission in considering Petitioner's argument. ALAB-875, slip op. at 13, n.28.

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In view of Petitioner's failure to make a prima facie case that application of section 50.47(d) would not serve the purposes for which it was promulgated', the Appeal Board correctly upheld the Licensing Board's denial of his waiver petition. b

3. The FES Adeauately Considered Class 9 Accidents.

Petitioner argued below that the Seabrook FES did not contain an adequate discussion of severe or " Class 9" accidents. The Appeal Board rejected this argument and found that the Seabrook FES complied with the l

requirements of the the Interim Policy Statement in that it contained "'a reasoned consideration of the environmental risks (impacts) attributable to (severe] accidents.'" ALAB-875, slip op. at 31-32; see also id. at 32-35.  ;

The Appeal Board also rejected Petitioner's arguments that the FES was deficient because allegedly it did not: (i) estimate the consequences of a ma]or accident; (ii) estimate early fatalities in the event of a major accident where evacuation is unavailable; or (ill) consider the possible consequences of sabotage at Seabrook. The Appeal Board found that the FES adequately estimated the risks (i .e. , the magnitude of the harm multiplied by the likelihood of its occurrence) as required by the Interim l Policy Statement. ALAB-875, slip op at 32-33. The Appeal Board also q I

found that the FES contained estimates of the increase in early fatalities i in the event evacuation were delayed for one day "{the most likely

-10/ The Appeal Board also- was correct in refusing to entertain a challenge to the validity of 10 C.F.R. 6 50.47(d). ALAB-875, slip op. at 5. NRC adjudicatory tribunals are powerless to entertain challenges to Commission regulations. 10 C.F.R. s 2.758(a); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398,1402 (1977).

consequence of a major earthquake having a destructive effect upon evacuation routes)". Id. at 34. Finally, the Appeal Board rejected Petitioner's argument that tha FES was deficient because it did not l

consider the consequences of acts of sabotage at Seabrook, stating "[i]t  ;

l is now settled that a facility's environmental review need not consider the l effects of sabotage." g., citing Philadelphia Electric Company (Limerick Nuclear Cencrating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 697-701 (1985). Petitioner has presented no new or substantial reasons why any of these determinations is erroneous.

D. Commission Review Should Not Be Exercised As 10 C.F.R. 9 2.786(b)(4) makes clear, "the grant or denial of a l petition for review is within the discretion of the Commission [ . ]"

l Ordinarily, the Commission will not g rant a petition for review in the absence of an indication that "the case involves an important matter that could significantly affect the environment, public health and safety, . . . l Involves an improtant procedural issue, or otherwise raises important I

questions of public policy [.]" 10 C.F.R. 6 2.786(b)(4)(1). Commission review is not warranted in this case.

Petitioner states that " Commission review is essential for three reasons," Petition at .5, none of which is persuasive. First, Petitioner argues, that "the errors of the Appeal Board are clear and affect substantial issues in this litig,ation[.]" ,l d . a t 5 -6. As indicated in this l

response, the Appeal Board's rulings on the issues raised in the petition for review are not erroneous, much less clearly wrong. Since the ruling 1

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complained of are correct, a fortiori, they do not improperly deprive Petitioner of any substantial rioht.

Second, Petitioner asserts without elaboration that his petition

" illustrates a serious flaw in the Commission's own regulation and in a case in which the effects of that flaw are particularly pronounced. "

Petition at 6. Consequently, the Staff is left to guess the " serious flaw"  ;

I to which Petitioner refers. Presumably, Petitioner is referring to 1

10 C.F.R. 9 50.47(d), the Commission's regulation which permits a low-power license to issue prior to the resolution of offsite emergency planning issues. Petitioner's assertion is without merit. Section 50.47(d), as the Commission has recognized, serves a useful purpose in allowing for "the early discovery and correction of unforseen but possible problems which may prevent . or delay full-power operation." CLI-85-12, supra, 21 NRC at 1590. Whenever it appears that the application of this regulation will not serve the purposes for which it was promulgated, a party is free -- as did Petitioner in this case -- to petition the Presiding Officer for a waiver of the regulation. The fact that Petitioner was unable to make the requisita showing hardly constitutes a " serious flaw" I in the regulation. U Finally, Petitioner argues that ALAB-875 moves Seabrook one step closer to low-power operation, which would create high level radioactive wa ste ... According to Petitioner, if full-power operation does not occur, ALAB-875 thus presents "an important matter that could significantly 1 l

g/ Another option available to any interested person who disagrees with  ;

a Commission regulation is to file a petition requesting that the rule  !

be repealed or otherwise changed. See 10 C.F.R. 5 2.800 et seq. ]

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i affect the environment." Petition at 6. Nothing in A LAB-875 itself threatens the environment. Rather, Petitioner's real concern is that low-power o'perations might commence before it is absolutely certain that full-power operation will be authorized. It is by now settled, however, that uncertainty about the outcome of a full-power licensing proceeding does not constitute an bar to low-power operations. E.g. CLI-85-12,

( supra, 21 NRC at 1590.

CONCLUSION For the reasons stated herein, the Massachusetts Attorney General's Petition for Review of ALAB-875 should be denied.

spectfully submitted,

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Cregor (lW

,lan , 3erry Counsel f kr NilC Staff I Dated at Bethesda, Maryland this 2nd day of November 1987 l

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,. l DOCHETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ll? NDV -2 P5 :29 BEFORE THE COMMISSION OFFlci OF sient;ggy DOCKETING & SERVICf' BRANCH in the Matter of )

} Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 l NEW llAMPSHIRE, et al.

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) On-site Emergency Planning

) and Safety issues (Seabrook Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of ".NRC STAFF'S RESPONSE TO ATTORNEY' CENERAL JAMES M. SHANNON'S PETITION FOR REVIEW OF ATOMIC SAFETY AND LICENSING APPEAL BOARD DECISION OF OCTOBER 1, l 1987, A LA B-875" In the abovo-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as

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l Indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's 1 internal mail system, this 2nd day of November 1987.

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Alan S. Rosenthal, Esq. , Chairman

• Dr. Emmeth A. Luebke Administrative Judge Administrative Judge l Atomic Safety and Licensing Appeal 5500 Friendship Boulevard Board Apartment 1923N ,

U.S. Nuclear Regulatory Commission Chevy Chase, Maryland 20815 l Washington, DC 20555 I Ms. Carol Sneider, Esq.

i Dr. Jerry Harbour

• Assistant Attorney General l Administrative Judee Office of the Attorney General l Atomic Safety and Licensing Appeal One Ashburton Place, 19th Floor Board Boston, MA 02108 U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard A. Hampe, Esq.

New Hampshire Civil Defense Agency Beverly Hollingworth 107 Pleasant Street 209 Winnacunnet Road Concord, NH 03301 Hamptorr, NH 03842 Sandra Cavutis, Chairman < Calvin A. Canney, City Manager i Board of Selectmen City Hall i RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801 Stephen E. Merrill Paul McEachern, Esq.

Attorney General Matthew T. Brock, Esq.

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I George Dana Bisbee Shatnes & McEachern j Assistant Attorncy General 25 Maplewood Avenue ]

Office of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, Mit 03301 Roberta C. Pevear Angie Machiros, Chairman State Representative Board of Selectmen Town of Hamoton Falls 25 High Road Drinkwater Road l Newbury, MA 09150 Hampton Falls, NH 03844  !

Allen Lampert Mr. Robert J. Harrison

- Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq. Robert A. Backus, Esq.

McKay, Murphy and Graham Backus, Meyer & Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq. Philip Ahren, Esq.

Harmon c Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr., Esq.

Federal Emergency Management Agency Ropes & Gray 442 J.W. McCormack (POCH) 225 Franklin Street Boston, MA 02109 Boston, MA 02110  !

H.J. Flynn, Esq. Willism Armstrong l Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter 500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel

• Board

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Jane Doughty Docketing and Service Section* . !

Seacoast Anti-Pollution League , Office of the Secretary 5 Market Street U.S. Nuclear Regulatory' Comminston Portsmouth, NH 03801 Washington, DC 20555

s Maynard L. Young, Chairman William S. Lord '

Board of Selectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 l Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, NH 03287 Newburyport, MN 09150

. Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.

Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street j North Hampton, NH 03862 Boston, MA 02110 i R. K. Gad fli, Esq. Mrs. Anne E. Goodman, Chairman Ropes & Gray Board of Selectmen 225 Frar.klin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq.

Holmes & Ellis 47 Winnacunnet Road J Harrpton, NH 03842 I d '

Gregor'/ Alanf Berry Counse for MC Staff v

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