ML20245A730

Applicant Response to Motion of Commonwealth of Ma Atty General to Hold Open Record Pending Low Power Testing & Required Yearly Onsite Exercise & for Other Related Relief.* Motion Should Be Denied.W/Certificate of Svc

ML20245A730
Person / Time
Site:	Seabrook
Issue date:	06/12/1989
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#289-8778 OL, NUDOCS 8906220138
Download: ML20245A730 (12)

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.UURC June 12 1989

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NUCLEAR REGULATORY COMMISSION  : ,

before the

-ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ") Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL

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(Seabrook Station, Units 1 and 2) ) (Off-site Emergency

) Planning' Issues) i

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APPLICANTS' RESPONSE TO MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL TO HOLD l OPEN THE RECORD PENDING IDW POWER TESTING AND THE REQUIRED YEARLY ONSITE EXERCISE AND FOR OTHER RELATED RELIEF INTRODUCTION' Under date of May 31, 1989, The Attorney General of The Commonwealth of Massachusetts (MAG) filed a " Motion of the Massachusetts Attorney General to Hold Open the Record Pending Low Power Testing and the Required Yearly Onsite Exercise and for Other Related Relief" (The Motion). The Motion sought two types of relief. The first was an-' order  !

l- directing the Applicants to permit obsewers, apparently to l

he designated'by MAG, on the Seabrook site to observe low power testing. This portion of The Motion was denied by the HOLDREP.SB Es906220138 89 $43 DR ADOCK PDR g

4 Board on June 1,.1989. Tr. 23590.- The.second form of relief sought.is an order from.this' Board declaring that it will.

hold open-the. evidentiary hearing record of the proceeding until such time as low power testing of Seabrook.and the presently scheduled: September, 1989, onsite' emergency exercise have taken place. Motion at 9. As part'of.this request, the Board is requested to schedule a prehearing:

conference setting a schedule for the filing of contentions l which may'arise out of low power testing or the onsite emergency plan exercise. Motion at 9-10.

The Motion proceeds from a legal theory that the decision of the United States Court of Appeals in MCS v. HEE, l 735 F.2d 1437 (D.C. Cir. 1984) requires that MAG be afforded l

l a hearing on all matt-ers material and relevant to the allowance of full power operation at Seabrook; that both low-power testing and the scheduled onsite emergency plan exercise are such matterst and that, therefore, an opportunity must be given for the filing of contentions and litigation thereof before the evidentiary record on full power operating authority can close.

As seen below, this legal theory is flawed and, even if it were not, The Motion is premature.

ARGUMENT I. THE MPyION IS PREMATURE As of this time, low power testing of Seabrook has yet to commence, and, in any event, there exist no grounds for

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I assuming that anything that goes on during low power testing will provide a sufficient basis for a litigable contention, j q

Obviously, the same is true with respect to the exercise ]

l scheduled in September. This being the case, MAG is premature in seeking the relief he does.

When, as and if something occurs in the low power i

testing program or during the exercise, which MAG believes l

gives rise to a legitimate contention, MAG can then file a proposed contention and an appropriate motion and brief ]

seeking to be relieved of the record reopening requirements ,

I of 10 CFR S 2.734 and the late-filed contentions standards of 10 CFR S 2.714 (a) (1) under his UCS legal theory. It is only if (a) a contention producing event occurs and (b) the i

alleged contention arising out of such an event cannot ]

l withstand the standards of 10 CFR S 2.714 (a) (1) and 10 CFR $

d 2.734 that any adjudicator need resolve the legal question I

presented by The Motion. Absent these circumstances, the issue need not be resolved.

Thus, The Motion is premature and should be denied on that ground alone.

II. LOW POWER TESTING IS NOT A MATTER  !

" RELEVANT AND MATERIAL" TO ISSUANCE pF FULL POWER OPERATING AUTHORITY A good deal of space in The Motion, Motion 3-6, is l devoted to the supposed demonstration that low power testing is " material and relevant to the determination by the l

C'mmission to issue a full power license," Motion at 3.

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i First, it is noted that 10 CFR 5 50.34 (b) (6) (iii) requires an i

application to set forth "[p]lans for preoperational testing l and initial operation." (As quoted in Motion at 3.) It should be noted that the full context of this language in 10 l

CFR 9 50.34 (b) (6) (ii) is:

"Each application for a license to operate a facility shall include a final safety analysis report. The final safety ,

analysis report shall include information i '

that describes the facility, presents the design bases and the limits on its operation and presents a safety analysis of the structures, systems, and a

components and of the facility as a whole, and shall include the following:

(b) the following information concerning facility operation:

(iii) Plans for preoperational testing and initial ,

operations." 1 (Emphasis added.)

Then it is argued that certain quotations taken from Pacifis l

l Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 794-95 (1983) and from Lona Island Liahtina Co. (Shoreham Nuclear Power Station),

CLI-85-12, 21 NRC 1587, 1590 (1985) stand for the proposition that at least where a low power testing license is, in fact, issued successful completion of the low power test program is a " precondition for issuance of a full power license."

Motion at 4-5. Finally, it is argued that certain portions of NRC's Brief before the court in the UCS case supports the proposition that "[t]he Commission itself views L

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preoperational and low power. testing as material to'its. full- )

power licensing decision."' Motion at 5-6.

What MAG has failed to distinguish between in his discussion of this point is-the issuance of a full' power-license or operating authority and allowina a plant so q licensed to ascend to full power. As the language of ALAB-728 relied upon by MAG acknowledges, low power. testing may well be " scheduled as the first step toward operation under f the authority of a full-power license." ALAB-728 at 795 i

quoted Motion at 4. MAG does not, and cannot, point to any law or regulation which requires the completion of a low

.s powe.r test program before a full power license issues. In an I uncontested case, there is no need to seek low power:

I operating authority under 10 CFR S 50.57(c) and 10 CFR S' 50.47(d). Indeed, Seabrook could elect not to perform' low l power tests at this point and simply await its full power

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1 license. The full power license can simply issue and the power ascension program will be started and monitored by the Staff. If the power ascension program at any point gives evidence of a problem, the Staff will stop the power ascension in the unlikely event that the licansee does not.

1 Never, has the successful completion of low power testing been a legal prerequisite to issuance of a full power license. 1 More importantly, as recognized in UCS, NRC and its predecessor AEC have, for years, permitted low power testing 1 I

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. . 1 and not allowed hearings as the result thereof (absent a i successful motion meeting the criteria now set forth in 10 CFR 6 2.734 or 10 CFR 5 2.714 (a) (1)) . Congress has been well aware of this practice for years, and with due respect to the Ugg dictum suggesting that perhaps it was not " confident" )

l Congress had acquiesced in this practice, in fact Congress has.

.4 III. UCS CANNOT BE READ AS GRANTING ANY j UNCONDITIONAL RIGHT.TO A HEARING j ON EVENTS OCCURRING DURING THE l SCHEDULED ONSITE EXERCISE ,

1 The Motion also asserts that the scheduled onsite  ;

1 emergency plan exercise is, under UCS, " material and relevant i

to the issuance of a full-power license." Motion at 7-8.

However, MAG's argument ignores that portion of MCS v. EEg (which, of course, dealt with full participation graded qualifying exercises) where the court made clear that there were er.ceptions to the " material and relevant" rule which the court described as follows:

"Although the AEA includes no exceptions to section 189(a), there is something to be said for the first proposition:

Obviously, Congress did not mean to require a hearing where a hearing serves no purpose. In determining the scope of such an exception we look to the APA, where Congress exempted from the formal hearing procedures adjudicatory

' decisions (that] rest solely on inspections, tests, or elections,' 5 U.S.C. S 554(a)(3) (1982), 'because those methods of determination do not lend themselves to the hearing process.' S.

Rep. No. 752, 79th Cong., 1st Sess. 16 (1945). The language of the APA exemption is circumscribed, and does not

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encompass all decisions!which are based on evidence derived from' tests or  ;

inspections. Were it not so circumscribed, an agency.would have unfettered discretion lto do away with hearings' altogether.and replace them with j staff inspectionscas the sole method'of. i developing evidence for its ultimate' l decision. For example, under such'a broad: reading, the NRC conceivably could remove; safety review'of nuclear reactor design from the license hearing by. ,

relying solely on tests and. inspections -j to determine that the reactor operates j safely. .Obviously, the test exemption is not so broad.

"In' seeking to discern its-limits, we look to the legislative history of the  !

APA. There,falthough Congress did.not .;

elucidate its reasoning-at length, it cited.the Attorney General's' report that j analyzed the exemption as designed for on l the spot decisions made by a qualified  ;

inspector who himself 'saw . . . tested .  ;

. . or examined' the-evidence material-to the decision. There is no indication it was meant to acolv to decisions that are made by weichina evidence tendered by third carties.- Where, as with orecarednegg exercises, the decision l involves a central decisionmaker's j consideration and weichina of many others  !

persons' observations and first hand I gxceriences, auestions of credibility. l conflicts, and sufficiency surface and '

l the ordinary reasons for reauirina a hearina come into the Dicture."

(Emphasis added.) (Footnotes omitted.)

735 F.2d at 1449-50.

In holding that the offsite exercise did not fall within the above-described exception, the court relied upon the following characteristics of'the offsite emergency plan exercise evaluation:

"In evaluating the exercises, the Commission does more than just review on the scene reports by NRC staff observers.

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Rather, the Commission is called upon to l consider and weighLevidence presented by j FEMA, the licensee, and state and local officials as well as'its staff in.  ;

assessing whether the exercises demonstrate that adequate emergency preparedness _ plans can and will be  !

implemented. . In addition, the' evaluation of exercises is itself just one, not the

-' sole,' factor in the Commission's overall determination,-required under the rule, that, in case of a radiological ,i emergency, there is reasonable assurance that adequate. measures can and will bc  ;

taken to protect the health and safety of  ;

the population around a nuclear power j plant. Thus, we conclude that evaluation  !

of emergency exercises is not a  ;

determination resting solely on a test or J inspection.so as to qualify.for a generic l exemption from section' 189(o) 's hearing ,

requirements." (Footnote omitted.). 735 I F.2d at 1450.

J In the case of the onsite exercise contemplated herein j l  !

the Commission will'"just review on-the-scene reports by NRC. (

l Staff observers;" and the Commission will Dgt " weigh evidence presented by FEMA, the licensee, and state and local l

officials."1 In short, the onsite exercise does fall within 1

the exception described in UCS. )

Prescinding from the foregoing, MAG also ignores the j

fact that the scheduled onsite emergency plan exercise will i be the fourth such exercise held at Seabrook, and the third I since the fuel loading and zero power operating license l

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licensee to the extent it is included in Staff.

reports or seeks to explain findings of the Staff, but this is no more a factor here than it would be in the case of the Staff inspection of a piping system.

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[I l issued. This is not the case where'the exercise involved is

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the only one of its kind available to litigate which was'the.

situation presented.in Upl. .

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CONCLUSTON 1

The Motion'should be denied. MAG should be 1 eft to his

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J remedies under 10 CFR S 2.734, 10 CFR S 2.714 (a) (1) , and 10 CFR 5 2.206, as applicable, in the event low power testing or j t

the onsite exercise when held reveals a safety' problem of any kind.

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Respectfully submitted, w

Thomas G.' DigIf!fn, Jr.

George H. Lewald Kathryn A. Selleck <

Jeffrey P.. Trout l Jay Bradford Smith .]

Geoffrey C. Cook 1 William Parker .

Ropes & Gray -J One International Place Boston, MA 02110-2624 I (617) 951-7000 Counsel for hpplicants j

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Um CERTIFICATE OF SERVICS 'gg jgpjjf p3:36 ,

I, Thomas G. Dignan, Jr., one of the attorne Applicants herein, hereby certify that on June IV.ys for the made service of the within document by mailing 68,91989,'Iles;,f ; U \ ,

thereof, postage prepaid, to:

Administrative Judge Ivan W. Smith, John P. Arnold, Esquire ,

Chairman Attorney General j Atomic Safety and Licensing George Dana Bisbee, Esquire '

Board Assistant Attorney General 4

U.S. Nuclear Regulatory Office of the Attorney General (

l Commission 25 Capitol Street i Washington, DC 20555 Concord, NH 03301-6397 l Administrative Judge Richard F. Mr. Richard R. Donovan Cole Federal Emergency Management Atomic Safety and Licensing Agency Board Federal Regional Center i U.S. Nuclear Regulatory 130 228th Street, S.W.

Commission Bothell, Washington 98021-9796 Washington, DC 20555 l Administrative Judge Kenneth A. Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 1 Stillwater, OK 74075 l Diane Curran, Esquire Robert R. Pierce, Esquire ) '

Andrea C. Ferster, Esquire Atomic Safety and Licensing Harmon, Curran & Tousley Board Suite 430 U.S. Nuclear Regulatory 2001 S Street, N.W. Commission Washington, DC 20009 Washington, DC 20555 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of the Executive Legal i

l Board Panel Docket (2 copies) Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire >

Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105

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Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectman's Office j Department of the Attorney 10 Central Road I General Rye, NH 03870 l Augusta, ME 04333 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney General j P.O. Box 360 '

Portsmouth, NH 03801 One Ashburton Place, 19th Flr.

Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney l i

Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall 126 Daniel Street j Kensington, NH 03827 Portsmouth, NH 03801 )

I Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire l U.S. Senate Lagoulis, Hill-Whilton & l Washington, DC 20510 Rotondi j (Attn: Tom Burack) 79 State Street Newburyport, MA 01950 i

Senator Gordon J. Humphrey Leonard Kopelman,-Esquire One Eagle Square, Suite 507 Kopelman & Paige, P.C.

l Concord, NH 03301 77 Franklin Street  ;

Boston, MA 02110 I (Attn: Herb Boynton) I Mr. Thomas F. Powers, III Mr. William S. Lord i Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 l H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street l Agency Newburyport, MA 01950 500 C Street, S.W.

l Washington, DC 20472 1

Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301 1

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-Ashod N.'Amirian,--Esquire- ,

145 South' Main' Street P.O. Box 38-.

Bradf ord', - MA1 : 01835:.

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Thomas C Dignan7 Jr.

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