ML20237C679
| ML20237C679 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/18/1998 |
| From: | Backus R BACKUS, MEYER & SOLOMON, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#398-19447 98-746-05-LA, 98-746-5-LA, LA, NUDOCS 9808240063 | |
| Download: ML20237C679 (8) | |
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L19H7 00CKETED USNRC t-UNITED STATES 0" AMERICA g g pg g3 BEFORE THE NUCLEAR REGULATORY COMMISSION.
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Before Administrative. Judges:
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Paul Cotter, Jr., Chairman Dr. Charles N. Kelber Dr. Linda W.
Little In-the Matter of
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. North Atlantic, Energy Servica Cor;, oration
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) ASLBP No. 98-746-05-LA Rockingham County, New Hampshire
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l SAPL/NECNP REPLY TO STAFF ANSWER TO CONTENTIONS
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By a pleading dated August 10,1998, the Staff urges the Board to reject the four
. contentions filed by SAPl/NECNP under date of July 9,1998. As anticipated by the Petitioners, Staff objects to all Contentions not focused on steam generator inspection fiequency. In addition, Staffobjects to the Contentions o:4 the ground that any review of the Staff "no significant hazards consideration"is precluded by 10 CFR 50.58(b)(6).
- 1. The Board has Jurisdiction Over this Matter.
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- Staff s citation to 50.58(b)(6) is misplaced. The intent of this section (mysteriously L
codified under a heading dealing with " Hearings and report of the Advisory Committee on l
Reactor Safeguards") is to make unreviewable (except by the Commission) a staff decision to L.
j pennit a license amendment to be implemented print to a hearing. The purpose of the section is not to prohibit a hearing.
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The Staffs position, if adopted, would result in an absurdity. Under the Staffs reading of 50.58(b)(6), it could make a fmding that a nuclear plant operator, say TVA as a federal government licensee, had such high standards of nuclear operation that all technical specifications could be vacated, and total trust for safe operation placed in the hands of the licensee. It could then recite that the three criteria of 10 CFR 50.92 were met because of the licensee's ability to assure safe operation and conclude that there was "no significant hazards consideration" as a result ofits proposed conclusion. According to the Staff, if this occurred, no one would ever be entitled to a hearing on its elimination of the Technical Specifications for the TVA reactors.
Neither the Congress, when it enacted the Sholly Amendment, amending Section 189a of the Atomic Energy Act, nor the Commission when it published its regulations implementing the Act, intended such a result.
This is clear from the Final Procedures and Standards on No Significant Hazards Considerations (Final Rule), 51 Fed. Reg. 7,744 (1986) cited by the Staff on page 4 ofits Answer. At the Commission set forth at page 7746:
In short, the "no significant hazards consideration" standard is a procedural standard which governs whether an opportunity for a prior hearing must be provided before action is taken by the Conunission and, as discussed later, whether prior notice for public comment may be dispensed with in emergency situation or shortened in exigent circumstances. (Emphasis added.)
l The Court that rendered the Sholly decision, in deciding that the promulgation of the Commission's rules implementing the legislation, mooted the case,"also found that NRC, of course, was still under a statutory mandate to hold a hearing after an amendment became f
effective, if requested to do so by an interested party." 11,
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7 And the Congress was equally clear. The Conference Repcrt states:
4 The conference agreement maintains the requirement of the Atomic Energy Act that a hearing ou a license amend-ment be held upon the request of any person whose interest may be affected. The agr:ement simply authorizes the Commission to issue the license amendment and allow it to take efree,
' before this hearing is held or completed. Id. at 7747.
' And the Senate stressed, "Its strong desire to preserve for the public a meaningful right to participate in decisions regarding the commercial use of nuclear power. Thus, the provision does not dispense with the requirement for a hearing, and the NRC, if requested [by an interested person], must conduct a hearing after the license amendment takes effect." Id.
l In short, the thing that is no longer subject to review is the Staff's determination that a 1
hearing, if requested and if the requirements for a hearing are met, not be held prior to the issuance of the license amendment because the amendment does not involve a "significant hazard."
In this proceeding, the Petitioners are not asking this Board to determine that they must have a hearing before the license amendment ifissued, becomes effective. Indeed, in their June 18,1998 Supplemental and Amended Petition, the Petitioners stated:
Since the requested exemption seeks authority for a 24 month fuel cycle, and the next scheduled refueling without the exemption will not occur l
i until 1999, there is no " emergency" that would require immediate action on the requested exemption.
In other words, the Petitioners have acknowledged that there is no need for a hearing
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before the issuance of the license amendment, since the intended application of the requested u
authorization is not imminent in this case.
In addition, it is not reasonable for the Staff to object to this Board's jurisdiction over the j u__
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Contentions submitted on July 9, when this proceeding arose out of a notice published by the Staffin the May 6,1998 Fed. Reg, when the very notice of the Staff's proposed conclusion also provides interested persons, such as the Petitioners, with notice of the time and manner in which they may request a hearing. That notice included identification of the standards for submission of Contentions on the license amendments identified in the notice. The Staff cannot take away with its left hand the hearing rights it invited the public to request with its right hand. (It certainly cannot do so and claim to be treating the citizens it exists to serve evenhandedly.)
Finally, to the extent the Petitioners have inadvertently presented their Contentions in a way that suggests they are seeking, contrary to the Sholly Amendment, and the Commission's regulations implementing the Amendment, a hearing before any requested amendment may be issued, they wish to assure the Board and the parties that no part of the relief they request seeks to require a hearing prior to the issuance of the requested amendment, should the Staffintend to in fact issue the amendment. In other words, the Petitioners seek only a hearing on the issues raised by their Contentions, not a determination that they are entitled to a hearing prior to any Staff decision on actual issuance of the amendment.
II. Contentions 2 through 4 Should be Admitted.
Petitioners anticipated the Staff objection to Contentions 2 through 4, and submitted a l
Memorr.ium of Law in support of these Contentions along with the Contentions themselves.
Petitioners continue to rely on that Memorandum and intend to submit this matter to the Board i
for decision on the basis of the arguments already made.
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Petitioners would only add that none of the caser cited by the Staffin support of their claim that the Board lacks authority to consider any aspect of the requested amendnient, not
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i within the four corners of the May 6,1998 Federal Register notice, dealt with the issue. Staffis of course correct, when it states that the Contentions must fall "within the scope of the issues involved in the proceeding." (Staff Answer at p. 6.) However, the question here is, what is the scope of the proceeding? This is matter is not addressed in any of the three cases which the Staff cites. Petitioners contend, for the reasons stated in their Memorandum of Law, that the proceeding involves a plan, of which the May 6 request is, by the licensee's own admission, merely one step ( in fact the second step) to move Seabrook to a 24 month fuel cycle, and that the NRC has not only the right, but the duty, to review this proposed change in an integrated, thorough, and overall fashion. That duty cannot be defeated by the choice of the licensee, whether or not acquiesced in by the Staff, to segment its proposal into a series of requests, thereby precluding any review of the entire, and major, change contemplated.
Finally, Staff suggests the Petitioners citations to NEPA cases are misplaced because the
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l present Contentions arise under the Atomic Energy Act, not the National Environmental Policy l
Act. Petitioners acknowledge this, but reaffirm their belief that this body of federallaw is directly l
relevant and reflects the only sound policy approach to the issue, for the reason stated above. In
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1 addition, Petitioners could have included a NEPA contention, and simply alleged that the I
concerns presented in the Contentions filed also enjoin the application of NEPA because the Staff l
not only failed to perform the necessary safety analysis under the AEA; they also offered no environmental assessment under NEPA. Since, however, the gist of the Contentions raised is the j
i question of reducing safety margins at Seabrook, such an additional Contention would only be for the purpose of having the Board give consideration to the NEPA cases. Petitioners believe the j
t Board can and should give these cases consideration without the filing of an additional, but not l l
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k substantively different, Contention. Petitioners would, however, be prepared to file such an amendment if necessary to pennit the Board consideration of the cited NEPA cases.
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Respectfully submitted, Seacoast Anti-Pollution League, New England Coalition on Nuclear Pollution By Their Attorneys, Backus, Meyer, Solomon, Rood & Branch, s
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BY: ' ' ~ '
DATED:
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- Robert A. Ba'ckus' 116 Lowell Street, P. O. Box 516 Manchester, NH 03105 (603) 668-7272 i
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00CKETED UbNOC UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGUIATORY COMMISSIOP21 P1 :43 Before Administrative Judges:
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Paul cotter, Jr., Chairman ADJUli% ?
~ g.F Dr. Charles N.
Kelber Dr. Linda W.
Little In the Matter of
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North Atlantic Energy
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Service Corporation
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) Docket No. 50-443 Seabrook Station, Unit No. 1
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) ASLBP No. 98-746-05-LA Rockingham County, New Hampshire
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CERTIFICATE OF SERVICE I hereby certify that copies of S APL and NECNP's Reply to Staff Answer to Contentions have been served on the following by deposit in the United States Mail, first class, this 18* day of August,1998.
Office of the Secretary B. Paul Cotter, Jr.
U.S. Nuclear Regulatory Commission Chairman Washington, D.C. 20555 Atomic Safety and Licensing Board Attn: Docketing and Service Station U.S. Nuclear Regulatory Commission (Original and two copies)
Washington, DC 20555-0001 Steven R. Hom, Esq.
Dr. Charles N. Kelber Office of the General Counsel Administrative Judge U. S. Nuclear Regulatog Commission Atomic Safety and Licensing Board Washington, D.C. 20555 U. S. Nuclear Regulatog Commission Washington, D.C. 20555-0001 Lillian M. Cuoco David A. Repka Senior Nuclear Counsel Winston & Strawn Northeast Utilities Service Company 1400 L Street, N.W.
l 107 Selden Street Washington, D.C. 20005 l
Berlin, CT 06037 l
Adjudicatory File Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dated: hbu,w[ /f iff?
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Stib'e'rt' A. Backus For SAPL and NECNP l
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