ML20246H230

NRC Staff Response to Intervenors Motions for Stay of Low Power Operation Pending Commission or Appellate Review.* Public Interest Does Not Favor Stay of Low Power Operations & Motion Should Be Denied.W/Certificate of Svc

ML20246H230
Person / Time
Site:	Seabrook
Issue date:	05/11/1989
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#289-8595 OL-1, NUDOCS 8905160039
Download: ML20246H230 (14)

Text

-_ ___--_-.

f?$

COCKEIEP UNC UNITED STATES OF AMERICA .'

NUCLEAR REGULATORY COMMISSION '89 WY 11 P/ :03

~

BEFORE THE COMMISSION i

In the Matter of )

I

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01

! NEW HAMPSHIRE, et al.

) On-site Emergency Planning

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

4 NRC STAFF RESPONSE TO INTERVEN0RS' MOTIONS FOR A STAY.0F LOW POWER OPERATION PENDING COMMISSION OR APPELLATE REVIEW I

i Gregory Alan Berry Counsel for NRC Staff May 11, 1989 '

8905160039 s90511 PDR ADOCK 05000443 l G PDR p67

l UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION i BEFORE THE COMMISSION l

Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-4'+4 OL-01 NEW HAMPSHIRE, et al. On-site Emergency Planning

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

l l

4 NRC STAFF RESPONSE TO INTERVENERS' MOTIONS FOR A STAY OF LOW POWER OPERATION PENDING COMMISSION OR APPELLATE REVIEW i

Gregory Alan Berry Counsel for NRC Staff May 11, 1989

!L UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION q BEFORE THE COMMISSION In the Matter of Docket Nos. S0-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01

, NEW HAMPSHIRE, et a_1,. ) On-site Emergency Planning

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

NRC STAFF RESPONSE TO INTERVEN0RS' MOTIONS FOR A STAY OF LOW POWER OPERATION PENDING COMMISSION OR APPELLATE REVIEW

^

INTRODUCTION The NRC Staff. opposes the motions for . stay pendente lite of the issuance of a license authorizing low power operation' of the Seabrook

-Station which' were filed on May 8,1989, by the Seacoast Anti-Pollution League (SAPL), the New England Coalition on Nuclear Pollution (NECNP), the Massachusetts Attorney - General, and the Town of Hampton (collectively i l

" Interveners"). See Application For Stay On Behalf Of Seacoast Anti-Pollution League (May 8, 1989) (hereinafter "SAPL Stay- Motion");

Interveners' Motion For A Stay Of Low- Power Operation Pending Connission Or Appellate Review (May 8, 1989) (hereinafter " Interveners Stay Motion").

As explained in this response, a consideration of the ' criteria governing stay applications set forth in 10 C. F.R. 9 2.758(e) militates against granting the requested stay. l DISCUSSION Section 2.788(e) lists four factors to be considered in determining whether a' stay application should be granted. Those factors are:

1

L I L .

l (1) whether the movant has made a strong showing that it is likely to prevail on the merits; (2) whether the movant will be irreparably injured in the absence of a stay; (3) the harm to other partics if a stay is granted; and (4) where the public interest lies.

10 C.F.R. 6 2.78t.e) . Th: Staff will address each of these factors in turn.

A. Likelihood Of Success On The Merits As explained below, none of the four grounds advanced by Interveners, see Interveners Stay Motion at 3-8, SAPL Stay Motion at 1-4, is likely to succeedonthemerits.1/

1. Alleged violations of the Atomic Energy Act Interveners assert that 10 C.F.R. 9 50.47(d), which permits low power I operations without a Commission or FEMA finding regarding the adequacy of offsite emergency response plans, violates section 189 of the Atomic l

Energy Act, which they claim precludes the issuance of a license to operate at any power level until after all issues material to full power licensing have been litigated. Interveners Stay Motion at 3. This argument already has been considered and rejected by the Commission and 1/ A fifth ground advanced by Interveners in support of a stay of low  !

power operation is that they are likely to prevail on the merits of their appeal of LBP-89-04 in which the on-site Licensing Board i contention alleging excluded from litigation a late-filed deficiencies in certain on-site aspects of an emergency planning exercise conducted by Applicants in June 1988. See Interveners Stay Motion at 1, 2-3. In view of the Comission's admonition in its March 22,1989 Order, the Staff does not address this issue herein but instead relies upon the response filed with the Commission on February 27, 1989. See NRC Staff Response To Joint Interveners Application For Stay OfTBP-89-04 Pending Appeal (February 27,1989).

l I

the Appeal Board. Long Island Lighting Company (Shoreham Nuclear Power l Plant, Unit 1), CLI-84-21, 20 NRC 1437,1440 and n.6 (1984); see Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-892, 27 NRC 485 (1988). Since Interveners do not even attempt to distinguish their claim from the one presented to and considered by the  !

Commission in connection with CLI-84-21, there is no likelihood that Interveners will prevail on the merits of their argument that section 50.47(d) violates the Atomic Energy Act.

2. Violation of the National Environmental Policy Act i There also is no likelihood that Interveners will prevail on the merits of their claim that issuing a low power license without first preparing a new Final Environmental Statement (EIS) or supplementing the 1982 EIS violates the National Environmental Policy Act (NEPA). Stay Motion at 5. This claim too has been considered and rejected by the Court of Appeals for the District of Columbia, the Commission, and the Appeal Board. Cuomo v. NRC, 772 F.2d 972, 974-76 (D.C. Cir.1985); Long Island Lighting Company (Shoreham Nuclear Power Plant, Unit 1), CLI-84-21, 20 NRC 1437,1440 and n.6 (1984); M., CLI-84-9,19 NRC 1323,1326 (1984); see Public Service Company r/ New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-865, 25 NRC 430, 439 (1987). Nothing in the instant stay motion provides a compelling eason for the Comission to depart from earlier announced position on tlis issue.

3. Interveners' decommissioning claims In their stay motion, Interveners again assert "that the Comission erred in its disposition of Interveners' petition for a waiver of the financial qualification rule with respect to low power operation."

_4-1 Interveners Stay Motion at 7, SAPL Stay Motion at 1-2. There is no 1 1

likelihood that Interveners will succeed in persuading the Commission to reverse its decision in Public Service Company of New Hampshire (Seabrook

)

Station, Units 1 and 2), CLI-88-10, 28 NRC 573, 592-601 (1988). The Commission has on two previous occasions denied Intervenor motions to  !

reconsider that determination. Id., CLI-89-03, 29 NRC (March 7, 1989); I_d . , CLI-89-07, 29 NRC (May 3, 1989). In CLI-89-03, the Commission rejected the identical claims advanced here (Interveners Stay Motion at 7) that CLI-88-10 (1) " ignored material evidence bearing on the cost of decommissioning the Seabrook reactor"; (2) " wrongfully engrafted an additional criterion . . . onto the standard for granting petitions for regulatory waivers, without giving Interveners an opportunity to comment on or address the new standard"; and (3)" reached a merits decision regarding the amount of funding needed for a post-low power decommissioning fund without providing an adequate opportunity for a hearing [.]" See CLI-89-03, slip op. at 6-10.

Interveners also assert that the decommissioning funding arrangements proposed by Applicants in response to CLI-88-10 do not satisfy the Commission's requirements because under the terms of Applicants' surety bond, the surety's obligation is triggered only "as a result of a denial by NRC of a full power license." According to Interveners, these funds will not be available in the event Applicants withdraw their full power application. Interveners Stay Motion at 7. There is little likelihood that this argument will succeed on the merits. As the Staff concluded in its May 3,1989 report to the Commission, and as Applicants acknowledge, the Commission "has adequate authority to impose necessary decommissioning

p .)

l l

I funding assurance requirements" should Applicants attempt to withdraw their full power license application. See Staff Evaluation Of PSNH l I Decommissioning Funding Assurance Plan For Seabrook Submitted In Accordance With Comission Decision CLI-88-10 at 7, attached to Memorandum L

3, Indeed, were From Victor Stello To Commissioners (May 1989).

L .

Applicants to move to withdraw their application, the Commission could

.then deny the underlying application itself thereby. triggering the surety's obligation under the terms of the bond. Interveners do not claim the Comission lacks such authority nor have they provided any other basis - which suggests the Comission lacks " adequate authority to

' impose necessary decommissioning funding assurance requirements" should Applicants attempt to withdraw their full power license application.

1 4. Seabrook Safety Parameter Display System According to SAPL, its argument that the Licensing Board and the Appeal Board erred in ruling 2/ that the completion of the Seabrook Safety Parameter Display System (SPDS) could be deffered until the first refueling outage is likely to succeed on the merits.. SAPL Stay Motion at 2-4. There is no merit to SAPL's position. As the Appeal Board stated in ALAB-865, 10 C.F.R. 6 50.57(a)(1) imposes "no requirement that all elements of the SPDS system must be completed before low-power operation in authorized." Seabrook, supra, ALAB-865, 25 NRC 430, 443-44 (1987).

-2/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-10, 25 NRC at 177, 183-87 and 194-205, aff'd, ALAB-875, 25 NRC 2G1 264-67 (1987)

Nothing presented in SAPL's stay motion suggests this interpretation is not correct. E B. Irreparable Harm If A Stay Is Not Granted As the Appeal Board has observed, "the most significant factor in deciding whether to grant a stay is whether irreparable harm will result

, in the absence of a stay." Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, J NRC 430, 436 (1987). As explained below, this factors weighs against Interveners.

Interveners point- to no individualized harm to themselves absent a i

stay, and state only that there will be increased " risk to the public if a i stay is not granted." Interveners Stay Motion at 9. The Commission has rejected this argument and concluded that the benefits of permitting l low-power operation and testing outweigh any possible detriment to the public. See Long I';1and Lighting Company (Shoreham Nuclear Power Plant, Unit 1), CLI-85-12, 21 NRC 1587, 1590 (1985); see also Seabrook, ALAB-865, 25 NRC at 436-38; Cuomo v. NRC, 772 F.2d 972, 974-76 (D.C. Cir.1985).

Interveners predicate the claim of increased risk to the public on a i statement that the " inadequacies in the training and knowledge of key j plant operators" a'legedly revealed in the Juite 1988 exercise "in itself t

constitutes irreparable harm." Interveners Stay Motion at 8. However, in the preamble to the final rule (10 C.F.R. 9 50.47) which provides that for i

-3/ SAPL also makes several claims which it believes warrant a stay of low power operation. SAPL filing at 4-5. SAPL does not provide any basis or discussion of these claims. In these circumstances, no issue is presented for consideration and decision. See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), AD@-843, 24 NRC 200, 204 (1986).

l

0 1 the issuance of a low power license in advance of the resolution of offsite emergency planning issues, the Comission rejected the premise of this argument, stating:

The Comission agrees. that there may be slightly higher risks

. due to the plant operators having less experience with the plant at this stage and with a potential for undiscovered design and construction defects. However, in the Comission's view, this risk is significantly outweighed by several other factors. i First, the fission product inventory during low power testing is much less than during higher power operation due to the low level of. reactor power and short period of operation. Second, at low power there is a significant reduction in the required capacity of systems designed to . mitigate the consequences of accidents compared to .the required capacities under full-power operation. Third, the time available for taking actions to identify accident causes and mitigate accident consequences is much longer than.at full power. This means the operators should have sufficient time to _ prevent a radioactive release from occurring. In the worst case, the additional time available (at least 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />), even for a postulated low likelihood sequence which.could eventually ~ result in release of the fission products accumulated at low power into the containment, would' allow adequate precautionary actions to be taken to protect the public near the site. Weighing all risks involved, the Commission has '

determined that 'the degree of emergency preparedness necessary to provide adequate protection of the public. health and safety is significantly less than that required for full-power operation.

L

" Emergency Planning and Preparedness," 47 Fed. Reg. 30232-33 (July 13, 1982) (footnote omitted). Thus, the Commission has determined that low power operation presents minimal risk to the public health and safety even

, considering the limited experience of the operators. There is no merit therefore to Interveners' claim that by not staying low power operation, "the Comission will be greatly increasing the risk to the public."

Interveners Stay Motion at 8.

C. Hann To Other Parties If A Stay Is Granted The third factor -- harm to other parties if a stay is granted --

favors Applicants. Granting the requested stay will necessarily postpone

C o

the date when Applicants can attain the benefits derived from low power '

- testing.- In Shoreham, supra, the Comission' identified these benefits:

(1)- testing and' evaluation of plant systems which cannot be

. tested or operated at zero power conditions; (2) evaluation, assessment and familiarization with technical

~

specifications- and implementing procedures for the operation of the plant while at low power; and (3) operator and plant staff experience on the actual plant ion a critical but still low-power operation.

CLI-85-12,L 21 NRC at '1590. . The Comission also observed that "[s]o long as an applicant is willing to invest the substantial effort and money necessary to attempt ' to obtain a full power license, the possibility of full' operation at a future. date give substantial value to ' low power testing." Id_. Because granting the stay requested by Interveners will delay Applicants' receipt of the . benefit of low power testing, the third stay criterion should be weighed in Applicants' favor.

D. Where The Public Interest Lies Interveners sta' e that "[tlhe public can only benefit from being spared the risks of low power operation, which in and of itself has no benefits, where the possibility of obtaining the benefits of full power operation is so remote." Interveners Stay Motion at 10. They are not correct. As the Appeal Board noted in Seabrook, supra, ALAB-865, 25 NRC at-446, "the Comission in the Shoreham case provided an analysis of the

~

public interest costs and benefits of low-power testing in circumstances where it is unclear whether full-power operation will ever be authorized."

In Shoreham, the Comission held that "the inherent benefits of early low-power testing outweigh the uncertainty that a full-power license may

be denied." CLI-85-12, 21 NRC at 1590. For these reasons, the public interest does not favor a stay of low power operations in this case. j CONCLUSION The motions to stay the issuance of a low power license for the Seabrook Station filed by SAPL, and jointly by NECNP, the Massachusetts

, Attorney General, and the Town of Hampton should be denied.

Rppactfullysubmitted.

l Y re 'ry A' er Counsel ft. NRC taff Dated at Rockville, Maryland this lith day of May 1989

V.

ECWLii; UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'89 MY 11 P4 :03 BEFORE THE COMMISSION In the Mattet of ) /..L A .  ;. g Docket Nos[.50-443:0L-01 PUBLIC SERVICE COMPANY OF 1 50-444 OL-01 NEW HAMPSHIRE, et al. ) On-site Emergency Planning

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

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENERS' MOTIONS FOR A STAY OF LOW POWER OPERATION PENDING COMMISSION OR APPELLATE REVIEW" .in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by double asterisks, by telecopier this lith day of May 1989:

Samuel J. Chilk (16)* Peter B. Bloch, Chairman

• Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Alan S. Rosenthal, Chairman

• Administrative Judge Dr. Jerry Harbour

• Atomic Safety and Licensing Appeal Administrative Judge Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Thomas S. Moore

• Dr. Emmeth A. Luebke Administrative Judge Administrative Judge Atomic Safety and Licensing Appeal 4515 Willard Avenue Board Chevy Chase, MD 20815 U.S. Nuclear Regulatory Commission Washington, DC 20555 Thomas G. Dignan, Jr. , Esq.**

Robert K. Gad, III Esq.

Howard A. Wilber* . Ropes & Gray Administrative Judge One International Place Atomic Safety and Licensing Appeal Boston, MA 02110 Board U.S. Nuclear Regulatory Commission Washington, DC 20555

w y

V Philip Ahrens, Esq. Judith H. Mizner, Esq.

-Assistant Attorney General 79 State Street Office of the Attorney General Newburyport, MA 01950 State House Station Augusta, ME 04333 Robert Carrigg, Chairman Board of Selectmen Stephen A. Jonas, Esq.** Town Office Assistant Attorney General Atlantic Avenue-Office of the Attorney General North Hampton, NH 03862 One Ashburton Place, 19th Floor

-Boston, MA 02108 William S. Lord ,

Board of Selectmen Geoffrey Huntington, Esq. Town Hall - Friend Street Assistant Attorney General Amesbury, MA 01913 Office of the Attorney General 25 Capitol Street Mrs. Anne E. Goodman, Chairman Concord, NH 03301 Board of Selectmen 13-15 Newmarket Road Diane Curran, Esq.** Durham, NH 03824

! Hannon, Curran & Tousley 2001 S Street, NW Hon. Gordon J. Humphrey Suite 430 United States Senate Washington, DC 20009 531 Hart Senate Office Building Washington, DC 20510 Calvin A. Canney City Hall Peter J. Matthews, Mayor 126 Daniel-Street City Hall Portsmouth, NH 03801 Newburyport, MN 01950 Allen Lampert Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of.Brentwood South Hampton, NH 03827 20 Franklin Exeter, NH 03833 Ashod N. Amirian, Esq. ,

Town Counsel for Merrimac William Armstrong 145 South Main Street i Civil Defense Director P.O. Box 38 Town of Exeter Bradford, MA 01835 10 Front Street Exeter, NH 03833 Robert A. Backus, Esq.** l Backus, Meyer & Solomon Gary W. Holmes, Esq. 116 Lowell Street i Holmes & Ellis Manchester, NH 03106  !

47 Winnacunnet Road '

Paul McEachern, Esq.**

J. P. Nadeau Shaines & McEachern Board of Selectmen 25 Maplewood Avenue 10 Central Street P.O. Box 360 Rye, NH 03870 Portsmouth, NH 03801

i Charles P. Graham, Esq. Atomic Safety and Licensing McKay, Murphy & Graham Appeal Panel (5)*

100 Main Street U.S. Nuclear Regulatory Comission Amesbury, MA 01913 Washington, DC 20555 Sandra Gavutis, Chairman Atomic Safety and Licensing Board Board of Selectmen Panel (1)* l RFD #1, Box 1154 U.S. Nuclear Regulatory Commission Kensington, NH 03827 Washington, DC 20555

R. Scott Hill-Whilton, Esq. Docketing and Tarvice Section*

Lagoulis, Clark, Hill-Whilton Office of the Secretary

& McGuire U.S. Nuclear Regulatory Commission 79 State Street Washington, DC 20555 Newburyport, MA 01950 Barbara J. Saint Andre, Esq.

H. J. Flynn, Esq. Kopelman & Paige, 9.C.

Assistant General Counsel 77 Franklin Street Federal Emergency Management Agency Boston, MA 021'#,

Wash n o $C b472 i

Gregory W 1 n @? ty f l

Counsel]orN$ Staff u 4

I I

l l

L