ML20151G550

New England Coalition on Nuclear Pollution Brief in Opposition to Authorization of Low Power Operation at Seabrook Nuclear Power Plant.* Board Lacks Authority to Permit Low Power Operation

ML20151G550
Person / Time
Site:	Seabrook
Issue date:	07/21/1988
From:	Curran D, Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20151G553	List: ML20151G550 ML20151G555
References
CON-#388-6796 OL-1, NUDOCS 8807290009
Download: ML20151G550 (4)

Text

-_ _.

h$

July 21,gq98g7, U$NHC UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSIM dlA25 A11 :40

) - , :c In the Matter of ) Umce0Cdiiw i i s;c t BRANU

)

Public Service Company of )

New Hampshire, et al. ) Docket Nos. 50-443 OL-1

) 50-444 OL-1

. (Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY

) PLANNING & TECHNICAL

) ISSUES NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S BRIEF IN OPPOSITION TO AUTHORIZATION OF LOW POWER OPERATION AT SEABROOK NUCLEAR POWER PLANT Introduction Pursuant to the Board's order of July 1, 1988, the New Eng-land Coalition on Nuclear Pollution ("NECNP") hereby responds to the question of whether the remanded coaxial cable issue need be resolved before low power operation. NECNP continues to press the legal arguments made in its brief of January 4, 1988 before the Licensing Board and reiterated in its brief of April 7, 1988, before the Appeal Board. Rather than repeat those arguments ver-batim, NECNP adopts and incorporates them by reference, and briefly summarizes them below.1 In essence, NECNP's position is as follows. First, the Atomic Energy Act does not authorize licensing for any level of nuclear power plant operation before completion of the prior adjudicatory hearings guaranteed by Section 189a of the Atomic 1 Copies of NECNP's April 7 appellate brief are attached for the convenience of the Licensing Board.

G807290009 080723 hDR ADOCK 05000443 h PDR

"' Energy Act. Thus, the Licensing Board must complete hearings on the remanded coaxial cable issue before it can authorize the Staff to issue a license permitting low power operation.2 NECNP also maintains that 10 C.F.R. 5 50.57 (c) provides the Licensing Board with no authority to' authorize low power opera-tion prior to the resolution of contested safety issues. If a pending contention relates to the safe operation of a nuclear power plant, it is necessarily "relevant" to the operation of the plant, whether it is at low power or full power. Aside.from 10 CFR 5 50.47(d), which relates only to offsite emergency planning, the regulations make no distinction between the level of regulatory compliance required for low power operation and for full power operation.3 Moreover, both the regulatory history of 5 50.57(c) and past licensing decisions reinforce the conclusion that the Commission has no authority to grant the equivalent of 2 It is also NECNP's position that all other contested issues, including NECNP's appeal of the Board's ruling on Contention IV, the remanded litigation on the adequacy of public notifi-cation, and offsite emergency planning issues, must be resolved before low power operation may be authorized. We note also that the Appeal Board has ruled that authorization to operate at low power cannot be given effect pending the outcome of litigation on remanded contentions concerning the siren systems for Seabrook. ALAB-883, 27 NRC (February 3, 1988), slip op, at 24. Thus, even if hearings on environmen-tal qualification were to be concluded, the Licensing Boutd would still lack authority to issue a license for low power ope * ~ation .

3 For instance, there is no provision in the regulations, equivalent to 5 50.47(d), which would allow low power opera-tion prior to the resolution of environmental qualification issuers.

,- +

ad has, case-by-case "exemptions" from mandatory licensing requirer,ats in the context of low power authorization, outside of the normative process of petitioning for regulatory waivers.

NECNP'has placed into contention the question of whether Applicants meet basic regulatory standards for nuclear power plant operation i.e. whether they.have properly identified all RG-58 coaxial cables which require environmental qualifica-tion, and whether those cablas which must be qualified have been adequately qualified or replaced with acceptable substitutes. ,

The question of whether an operating license applicant meets the environmental qualification requirements or any other safety requirements is inherently "relevant" to the safe operation of the plant. In fact, the Commission has accorded these part3cular regulations extraordinary ilmportance in its regulatory scheme, calling the principle of environmental qualification "fundamental to nuclear reactor regulation." Petition for Emercency and Remedial Action, CLI-80-21, 11 NRC 707, 710'(19'80). Tha question of whether Applicants comply with these regulations must be resolved before operation at any level of power.

Finally, NECNP argues that the only alternative means avail-able to Applicants that would enable them to bypass litigation of outstanding contentions prior to receiving authorizatior, to oper-ate at low power is to petition for a regulatory waiver of the General Design Criteria and regulations that are the subject of NECNP's contentions, pursuant to 10 C.F.R. 9 2.758(b).4 Any 4 Regulatory exemptions may be granted only where the applicant

e l .

le other standard would 71olate the presumption of the validity and c

general applicability of all regulations that is embodied in 10 C.F.R. 5 2.758, and unlawfully shift the burden of proof away from the party seeking a waiver of a regulatory requirement, placing it instead on parties who seek to ensure compliance with valid regulations.

CONCLUSION The Licensing Board lacks authority, under either the Atomic Energy Act or NRC regulations, to permit operation of tho Seabrook nuclear powre plant at low power levels before complet-ing litigation of contested safety issues. The remanded hearings on the RG-58 coaxial cable must therefore be completed before issuance of a license to operate Seabrook at low power.

spectfulJy submitted, W (.J~bdAA

/ Ylor/4

• Diane Curran Andrea Ferster HARMON & WEISS 2001 S Street, N.W., Suite 430 Washington, D.C. 20009 (202) 328-3500 July 21, 1988

($ontinued) can demonstrate special circumstances with respect to the sub-ject matter of the proceeding such that application of the regulation would not serve the purposes for which it was adopted, or upon a showing of "exceptional circumstances." 10 C.F.R. 55 2.758(b) and 50.12. Under both exemption standards, "the burden is on ... the petitioner for a waiver." Carolina Power & Licht Company, et al. (Shearon Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410, 443 n.16 (1985), a f f 'd , ALAB-837, 23 NRC 525 (1986)

~