ML20205F230

Memorandum & Order Denying Seacoast Anti-Pollution League 860717 Motion for Board Decision on Applicant Evacuation Time Estimate as Condition to Issuance of Ol.Served on 860818

ML20205F230
Person / Time
Site:	Seabrook
Issue date:	08/14/1986
From:	Harbour J, Luebke E, Wolfe J, Wolfe S Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC), PUBLIC SERVICE CO. OF NEW HAMPSHIRE, SEACOAST ANTI-POLLUTION LEAGUE
References
CON-#386-337 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8608190125
Download: ML20205F230 (11)

Text

F 1 00CMETE0 l UNITED STATES OF AMERICA USNRC-NUCLEAR REGULATORY COMMISSION l 1

ATOMIC SAFETY AND LICENSING BOA $ NE 15 P4 :27 Before Administrative Judges:

Sheldon J. Wolfe, Chairman GFFICE OF 00CHEIirac EEcat

& sggy cf, rA,;:v Emmeth A. Luebke BR W M s Jerry Harbour gano Aus \h986

) Docket Nos. 50-443-OL-1 In the Matter of ) 50-444-0L-1

)

PUBLIC SERVICE COMPANY ) (On-SiteEmergencyPlanning 0F NEW HAMPSHIRE, et al. ) and Safety Issues)

)

(ASLBP No. 82-471-02-0L)

(Seabrook Station, Units 1 and 2)

August 14, 1986 MEMORANDUM AND ORDER (Denying SAE 's Motion For Decision On ETE)

Memorandum I. Background On July 11, 1983, the Boardi (hereafter referred to as the Hoyt i Board) issued a Notice of Hearing (48 Fed. Reg. 32417). Therein, the Hoyt Board stated that the first phase of evidentiary hearings upon technical safety and on-site emergency hearing issues would commence in August and be completed in September, 1983, and that the second phase of hearings upon off-site emergency planning issues would commence in December, 1983. During the August, 1983 hearing, evidence was taken l

1 As of August 25, 1982, that Board had been reconstituted to consist of Administrative Judges Helen Hoyt, Chairperson, Emmeth A. Luebke and Jerry Harbour.

8608190125 860814 PDR ADOCK 05000443 G PDR

$b u

r 2 upon NECNP Contention 1.B.2 (Environmental Qualifications of Electrical Equipment), NECNP Contention III.1 and NH Contention 20 (Emergency Classification and Action Levels) and NECNP Contentions III.12-III.13.2 Proposed findings of fact and conclusions of law with respect to these contentions were filed by various parties. Seacoast Anti-Pollution League filed proposed findings of fact and conclusions of law on October 26, 1983 with respect to NECNP Contentions III.12-III.13. On November 23, 1983, Applicants filed a reply to the proposed findings of the various parties.

The Hoyt Board did not issue a partia'l initial decision with respect to the cont'entions adverted to above. On September 9, 1985, another Board (hereafter the Wolfe Board) was appointed to preside over all safety and on-site emerger.cy planning issues.3 In an Order of l October 4, 1985 (unpublished), noting that during the 1983 hearing, l

certain documents relied upon by the parties were to be updated, revised

( or completed within a short time thereafter, the Wolfe Board directed 2

As reworded by the Board, NECNP 111.12-111.13 read as follows:

Evacuation Time Estimate "The evacuation time estimates provided by the Applicants in Appendix C of the Radiological Emergency Plan are deficient in failing to include an estimate of: 1) the times for evacuation during adverse weather conditions developing on a busy sumer weekend; and 2) the times for simultaneous evacuation of beach areas lying NE to SSE of the Seabrook site."

3 This Board consists of Administrative Judges Sheldon Wolfe,

! Chairman, Emmeth A. Luebke and Jerry Harbour.

I that the Staff inform it whether certain documents and/or information f identified in the Order had been submitted by the Applicants and whether I the Staff's evaluations of these submissions had been completed.4 In order to distinguish between submissions to be considered by the Wolfe Board and those to be considered by the Hoyt Board, in an Order of October 7,1985 (unpublished), the Wolfe Board directed that submissions to it should bear the caption "On-site Emergency Planning and Safety Issues."

In an Order issued November 4,1985 (unpublished), the Wolfe Board stated as follows:

We have reviewed the record and have concluded that the record needs to be reopened for the limited purpose of supplementation. It is not our intention, and we will not permit the retrying of issues heard before the closing of the record on August 23, 1983. After a prehearing con-ference, and after discovery, if any, a supplementary hearing will be ordered to take evidence on the above-identified matters pertaining to Contentions NECNP I.B.2, NECNP III.1 and NH 20, which involve significant health and safety issues, and which were not previously ripe for hearing.

Footnote 2 stated that, if NH Contention 10 (Detailed Control Room Design Review) was not informally resolved, evidence would be taken on that contention as well during the supplementary hearing.

Ultimately, on June 4, 1986, the Statf submitted copies of two sections which would appear in SSER 4, when published -- Section 13.3 l

4 The documents and/or information identified by the Board in the Order of October 4,1985 related only to technical safety and on-site emergency planning issues and no documentation or i

information was sought with respect to NECNP III.12-III.13.

L- -_ ._

)~

5 l

s reflected the Staff's completed review of the Seabrook emergency classification and action level schemes (the focus of NECNP Contention III.1 and NH Contention 20), and Section 18 reflected the Staff's review of the Seabrook control room design (the focus of former NH 10, which, pursuant to the Wolfe Board's Memorandum and Order of July 21, 1986, LBP-86-22, 24 NRC , was converted to and replaced by SAPL Supplemental Contention 6). On June 11, 1986, the Staff submitted copies of a section which would appear in SSER 5, when published --

Section 3.11 reflected the Sta'ff's completed review of the Applicants' environmental qualification of electrical " equipment (the focus of NECNP Contention 1.B.2).

On June 17, 1986, Applicants filed a motion which, among .other things, requested that the Wolfe Board schedule a hearing upon contentions NECNP 1.B.2 and III.1, and NH 20, and also requested that the Board's partial initial decision should authorize operation of Seabrook Unit No. 1 up to and including 5% of rated power. The Town of Hampton, SAPL, the Comonwealth of Massachusetts, NECNP and the Staff filed responses. None of these responses argued that the adequacy of Applicants' Evacuation Time Estimate (the focus of NECNP's Contentions III.12-111.13) had to be resolved in the partial initial decision before the Board could authorize a low power operating license. In its respor.se of June 27, 1986, in pertinent part, SAPL merely stated that it did not oppose the granting of Applicants' motion of June 17 provided that the Board's partial initial decision would not authorize the operation of Seabrook Unit No. I up to 5% of rated power.

l

- - - - - - - - - - - - - - - - - - - _ _ _ _ _ _ _ J

O Before the Board ruled on Applicants' motion of June 17, SAPL filed the instant motion on July 17, 1986.

In the Memorandum and Order of July 25, 1986, inter alia, the Wolfe Board rejected SAPL's condition or proviso set forth in its response of June 27 since 10 C.F.R. $2.758(a) precludes a Licensing Board from considering attacks or challenges to the Commission's rules or regulations and since SAPL, in any event, had not complied with $2.758 procedures for pM itioning that the application of 5950.47(d)and 50.5/(c) be waived or an excep' tion be made in this proceeding.

(LBP-86-24, 24 NRC ). -

On July 29 and on August 5, 1986, the Applicants and the Staft respectively filed responses to SAPL's motion of July 17.

II. Discussion SAPL's first argument is that, since the Hoyt Board deemed the ETE -

contention to be an on-site emergency planning issue and heard evidence on it, it is the law of this case that the issue of the adequacy of Applicants' Evacuation Time Estimate (ETE), as challenged in NECNP l

Contentions III.12-III.13, is an on-site issue and thus must be resolved before a low power operating license could be issued. SAPL's second argument is that, when 10 C.F.R. 9550.4/ and 50.57 are read together, it is clear that Applicants' ETE must be considered as part of on-site emergency preparedness. As part of this second argument, SAPL asserts that Applicants' ETE is related to on-site safety because of the I

requirement that alerting and notification procedures be in place before a partial initial decision can authorize low power testing. Its third argument urges that the ETE is an on-site issue, because not only the i

c j l I Hoyt Board but the Applicants and the Staff as well had deemed the ETE issue to be part of Applicants' emergency planning and had proceeded to t litigate that issue independent of a consideration of the off-site plans.

As our first threshold ruling, we find that SAPL's motion was untimely filed and thus is denied. Its arguments should have been timely presented in its response and objection filed on June 27, 1986.

In that submission SAPL did not. urge that Applicants' motion of June 17, l

1986, which, in part, requested that the Board's partial initial decision should authorize low power operat~ ion up to 5% of rated power, should not be granted until and unless the Board also found that Applicants' ETE (the focus of NECNP III.12-III.13) was adequate. All parties are expected to and are required to exhaust all of their arguments in their initial submissions -- they may not present "after thought" arguments under the guise of captioning as motions any subsequent submissions. The filing of a consolidated motion would have occasioned only one set of responses by Applicants and the Staff, and one ruling by the Board, and would not have caused delay and additional expenditure of efforts by the responding parties and by the Board.

Further, with respect to SAPL's tirst argument, even assuming for the sake of argument that as SAPL alleges, the Hoyt Board considered the ETE as being an on-site emergency planning issue, the doctrine of the rule of the case does not preclude this Board, as a successor on on-site issues and as an independent Board, from reconsidering upon our own motion rulings in the form of actions by the previous Board. See IB Moore's Federal Practice 10.404[4.-2]. Ihus, our second threshold

ruling is that the doctrine of the rule of the case does not preclude us from deciding whether or not the ETE is an on-site emergency planning issue.5 l

In light of the discussion above, it is clear that this Board has never been requested to rule and we have had no reason to rule whether the adequacy of the ETE is or is not an on-site issue. However, from the date of its appointment, the Wolfe Board has always considered this to be an off-site issue. At no time have our several issuances referred to NECNP Contentions III.12-II1.13. Indeed, in our Memorandum and Order of July 25,198b, we did not state that in our partial initial decision we would consider the ETE in deciding whether or not to authorize issuance of an operating license for operation of Seabrook Unit i up to 4

and including 5% of rated power.

It is now time for this Board to rule that NECNP Contentions III.12-III-13 do not present an on-site emergency planning issue. In the first place, the woraing of the ETE contention reflects a concern only with respect to the evacuation of off-site populations (See l

I footnote 2, supra).

Further, SAPL's second and third arguments are without merit. At page 3-5 of its motion, SAPL argues that, when 6550.47 and 50.57 are read together, it is clear their provisions require that Applicants' ETE f In passing, we note that on March 25, 1986, Judge Hoyt ruled tnat l

that Board had jurisdiction over the ETE in its entirety, both as

' to the prior litigation and as to any further litigation on that issue before that Board. Since we rule, infra, that the ETE is not an on-site issue, there will be no conflict between the two Boards.

1 1

k l

?

u be considered as part of on-site emergency preparedness.6 Sections 50.57(a) and (c) state that if a motion is filed opposing an applicant's 6 10 C.F.R. 550.47 provides in pertinent part:

(a)(1) Except as provided in paragraph (d) of this section, no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.

' xxxx (d) Notwithstanding the requirements of paragraphs (a) and (b) of this section, no NRC or FEMA review, findings, or determinations concerning the state of offsite emergency preparedness or the adequacy of and capability to implement State and local offsite emergency plans are required prior to issuance of an operating license authorizing only fuel loading and/or low power operations (up to 5% of the rated power).

Insofar as emergency planning and preparedness requiremen'.s are concerned, a license authorizing fuel loading and/or low power operation may be issued after a finding is made by the NRC that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. The NRC will base this finding on its assessment of the applicant's emergency plans against the pertinent standards in paragraph (b) of this section and Appendix E of this part.

10 C.F.R. 650.57 provides in pertinent part:

(a) Pursuant to %50.56, an operating license may be issued by the Commission, up to the full term authorized by 650.51, upon finding that:

(1) Construction of the facility has been substantially completed, in confonnity with the construction permit and the application as amended, the provisions of the Act, and the rules and regulations of the Commission; and (2) The facility will operate in conformity with the application as amended, the provisions of the Act, and the rules and regulations of the Consnission; and

(?) There is reasonable assurance (1) that the activities authorized by the operatirq license can be conducted without endangering the health ar; safety of the public, and (ii) that such activities will be conducted in compliance with the regulations in this chapter; and (Footnote Continued)

s request for an operating license short of full power operation, the presiding officer shall make findinp3, inter alia, that the facility (FootnoteContinued)

(4) The applicant is technically and financially qualified to engage in the activities authorized by the operating license in accordance with the regulations in this chapter. However, no finding of financial qualification is necessary for an electric utility applicant for an operating license for a utilization facility.'of the type described in 550.21(b) or

$50.22.

(5) The applicable provisions of Part 140 of this chapter have been satisfied; and -

(6) The issuance of the license will not be inimical to the common defense and security or to the health and safety of the public.

XXXX (c) An applicant may, in a case where a hearing is held in connection with a pending proceeding under this section make a motion in writing, pursuant to this paragraph (c), for an operating license authorizing low-power testing (operation at not more than 1 percent of full power for the purpose of testing the facility), and further operations short of full power operation. Action on such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized. Prior to taking any action on such a motion which any party opposes, the presiding otticer shall make findings on the matters specified in paragraph (a) of this section as to which there is a controversy, in the form of an initial decision with respect to the contested activity sought to be authorized. The Director of Nuclear Reactor Regulation will make findings on all other matters specified in paragraph (a) of this section. If no party opposes the motion, the presiding officer will issue an order pursuant to %2.730(e) of this chapter, authorizing the Director Nuclear Reactor Regulation to make appropriate l

findings on the matters specified in paragraph (a) of this section and to issue a license for the requested operation.

l L

Y f

will operate in conformity with the Commission's regulations and that there is reasonable assurance that the activities authorized by the operating license can be conducted without endangering the health and safety of the public. Because 950.47(d) refers to Appendix E, which, in turn, refers to NUREG-0654, SAPL asserts that NUREG-0654 J(8) makes it the duty of the applicant to submit an ETE and thus SAPL concludes that the requirement for an ETE is part of the on-site emergency preparedness required by NRC regulation. La.cking the necessary linch-pin, SAPL's argument is without merit. NUREG-0654 J(8) merely requires that each licensee's plan shall contain estimates f6r evacuation within the plume exposure EPZ in accordance with Appendix 4, which, in turn, merely states that times should be estimated for the evacuation'of permanent residents, transient populations and special facility populations within the plume exposure pathway. There is no requirement anywhere in NUREG-0654 that the evacuation time for on-site persons be estimated.

As part of this argument, SAPL urges that the Applicants' EIE is, moreover, related to on-site safety because of the requirement that alerting and notitication procedures be in place before a partial initial decision can authorize low power testing. However, this part of the argument is also without merit because, while the Commission has stated that, prior to issuing a low power operating license, the NRC will review notification and alerting procedures, it did not state that an applicant's ETE must be completed and reviewed prior to such an issuance. 47 Fed. Reg. 30232, 30234 (1982).

At pages 6-9 of its motion, SAPL presents its third argument, the substance of which has been summarized above. Since this Board has

l N

w.

i ruled, supra, that the ETE contention is not an on-site emergency planning issue, and since this ruling is now the law of this case, the argument is rejected.

ORDER SAPL's Motion For Board Decision On Applicants' Evacuation Time Estimate (ETE) As A Condition To Issuance Of Operating License is denied.

ATOMIC , SAFETY AND LICENSING BOARD M M Bell.

SheldonJ.WCFe, Ch8irman

' ADMINISTRATIVE JUDGE

/

Je n9 Harbo0r ADMINISTRATIVE JUDGE l

0.

Emmeth A. Luebke ADMINISTPATIVE JUDGE Dated at Bethesda, Maryland this 14th day of August, 1986.

l l

l l

.