ML20209E839

New England Coalition on Nuclear Pollution Supplemental Brief in Support of Motion for Stay of Low Power License.* Applicant Has Not Submitted State & Local Govt Plan or Util Plan to Provide Adequate Measures in Event of Emergency

ML20209E839
Person / Time
Site:	Seabrook
Issue date:	04/23/1987
From:	Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20209E810	List: ML20209E804 ML20209E839
References
OL-1, NUDOCS 8704300133
Download: ML20209E839 (8)

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April 2 3, 1987 UNITED STATES NUCLEAR REGULATORY COMMISSION -

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

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In the Matter of )

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Public Service Company of ) '

New Hampshire, et al. ) Docket Nos. 5 0-443 OL-1

) 5 0-444 OL-1 (Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY

) PLANNING & TECHNICAL

) ISSUES NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION FOR A STAY OF THE LOW PCWER LICENSE I. INTRODUCTION I On April 8,1987, New England Coalition on Nuclear Pollu-tion, Inc. ("NECNP") filed a motion with the Appeal Board seeking a stay of the Licensing Doard's March 26, 1987 Pa rtial Initial .

Decision authorizing low power operation at the Seabrook nuclear power plant. At that time, Applicants had not submitted radiological emergency plans for " state and local governmental entities" within the Seabrook EP2, due to the Commonwealth of Massachusetts' determination that adequate. emergency planning for the Seabrook f acility was not possible, nor had it filed a so-called " utility plan" to compensate for the lack of participation by state and local government entities. NECNP had argued in its brief that a stay of the low power license was warranted, inter alia, because Applicants had f ailed to comply with 10 C.F.R. 5 i

50.33(g), which requires the submission of " State and local gov- l ernment" plans prior to the issuance of a low or zero power 0704300133 870423 ADOCK 05000443 PDR Q PDR

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license. This reading of S 50.33(g) was subsequently af firmed by the Commission, on April 9,1987, when it reversed the Appeal Doard in ALAD-853 and held, as a matter of law, that " sound policy favors requiring the filing of a State, local, or utility plan before any operating license is issued, including a license confined to fuel loading or low power testing."1 On April 8, 1987, Applicants served on the parties a docu-ment that they described as a "u tility plan," which Applicants now argue satisfies the requirements of S 50.33(g).2 Applicants' tiling of this document has substantially changed the legal issues raised in Applicants low power license application. We read the Commission's regulations to provide that S 50.47(d)'s excaption from the requirements that there be findings or determinations on the adequacy of emergency plans, on its face, only applies where Applicants have submitted " State and local" energency preparedness plans that are nubject to review under 10 C.F.R. S 50. 4 7( a ) and (b). Since Applicants have now submitted a document that they describe to be a " utility plan" pursuant to 10 C.F.R. S 50.4 7( c) (1) , it is now cicar that, under the Commis-sion's own regulations and under its decision in Shoreham (CLI-86-13), no zero or low power license can be issued until this plan is fully litigated and findings as to its adequacy are made.

1 CLI-87-02, at 6 2

See Applicants' tion of Stay," dated April 7,1987." Suggestion of Mootness and Request for Vaca-f - - - - - - - -

Accordingly, NECNP of fers the following legal argument in support I of its arguments that a stay of the low power license is war- '

ranted because NECNP has a substantially likelihood of success on the merits.

II.

COMMISSION REGULATIONS REQUIRE THAT FULL ADJUDICATORY HEAR-INGS BE HELD ON THE ADEQUACY OF A " COMPENSATORY PLAN" PRIOR TO THE ISSUANCE OF A LOW POWER LICENSE.

As s uming, for the purposes of argument, that the document submitted by Applicants on April 8,1987 constitutes a "com-pensatory" plan referred to in S 50.47(c)(1),3 the mere submis-sion of such a plan is plainly insufficient, under the Commis-sion's regulations, to warrant issuance of low power license.

Rather, the Commission must complete hearings on the adequacy of the utility plan under 10 C.F.R. S 50.47(c)(1) before it can allow Seabrook to operate at any level of power. Th is is because S 50.47(d) , which authorizes the issuance of low power licenses i prior to hearings and findings on the adequacy of offsite emer-gency preparedness, clearly only applies where Applicants have submitted State and local government plans. Section 50.4 7(d) provides only that Notwithstanding the requirements of paragraphs (a) and (b) of this section, no NPC or PEMA review, findings, or 3

In fact, as noted by the Commonwealth of Massachusetts, the plans contain no " compensatory measures." Rather, they nothing more than draf t plans were soundly rejected by Massachusetts as inadequate and unworkable, and the Commonwealth of Massachusetts haa consistently stated that it will not implement those plans.

See Attorney General James M. Shannon's Response to Applicants' Suggestion April 9,1987, of Mootness at 2. and Request for Vacation of Stay," filed l

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determinations concerning the state of offsite emergency i

preparedness or the adequacy of and capability to implement

! State and local of fsite emergency plans are required prior to the issuance of an operating license authorizing only fuel loading and/or low power operations.

10 C.F.R. S 50.47(d) (emphasis added) . No exemption is provided when utility plans are submitted under the standard of paragraph

_( c ) . And SS 50.47(c)(1) and 50.47(d), when read together, clearly require an evidentiary hearing and findings as to the adequacy of the so-called "u tility plan" before a license to operate at any level of power can be issued.

In the present case, Applicants are unable to comply with the plan language of 5 50.33(g), that they submit plans of " State and local governmental entities." Hence, they have turned to S 50.47(c)(1), which provides that so-called utility plans are acceptible only under the following circumstances:

Failure to meet the applicable standards set forth in para-graph (b) of this section may result in the Commission deny-ing to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction ,

of the Commission that deficiencies in the plans are not  ;

significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

10 C.F.R. S 50.47(c)(1). Clearly, the plain language of 5

50. 4 7( c) (1) contemplates something more than mere submittal of ,

" compensatory plans;" rather, Applicants must make an additional showing, to the satisfaction of the Commission, that either (1) the deficiencies in the plan are not significant, or (2) "ade-quate interim compensating actions have been or will be taken l

promptly."

Applicants so-called " utility plan" has not been submitted ,

for the purposes of remedying insignificant deficiencies in State and local government plan, since no such plans exist. Ra ther, Applicants plan is clearly intended to satisfy 5 50.47(c)(1)'s requirement that " adequate interim compensating actions have boon or will be taken promptly." As a result of this decision to go s

the route of a compensatory plan, Applicants are no longer exempted by virtue of S 50.47(d) f rom the requirements of SS 50.47(a) and (b) that there be a finding "that there is rea-t sonable assurance that adequate protective measures can and will l be taken in the event of a radiological emergency" prior to the issuance of a low power license, since_ the exemption under S 50.4 7 (d ) , on its face, does not apply to the requirements of S 50.47(c)(1). Put another way, while the requirements of 5 50.33(g), for purposes of a low power license, can be satisfied by the mere submittal of State or local plans, without any find-ings as to their adequacy per S 50.47(d)'s exemption, nothing in ,

S 50.47(d) exempta low power licenses from the requirements of 5 50.47(c)(1). The clear import of S 50.47(c)(1) is that "com-pensatory" plans represent a special case, and that therefore '

there must be a finding that these plans are adequate prior to the issuance of a low or zero power license.

Not only does the plain language of the commission's regula-tions command that no low power license be issued before the ade-quacy of a compensatory plan submitted under S 50.47(c)(1) has been fully litigated, this reading also makes sense as a matter l

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of sound policy. As the Commission plainly stated, "the emer-gency planning standards in 10 C.P.R. S 50.4 7(b) and Part 50, Appendix E are premised upon a high level _ of coordination between the utility and State and local governments." In the Matter of Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CL I- 8 6 -13, at 10 (emphasis added) . The requirements of SS 50.33(9) and 5 0.47(d) that there only need be a good faith sub-mission of State and local government plans, with no need to make findings as to their adequacy, prior to the issuance of a low or zero power license, obviously embody a regulatory finding that the state and local government endorcement of such plans provides ll[

cufficient assurance that they might eventually be found ade-quate. However, compennatory or "u tility" plans provide no such assurances; to the contrary, compensatory plans are only neces-citated by the refusal of ctate and local governments within the EPZ to cooperate in emergency planning or preparedness exercises.

Thus, the submission of compensatory or " utility" plans in lieu of state and local government plans, is tantamount to a statement that there is no assurance that the emergency planning and preparednean requirements of 50.47(b) will ever be met. Hence, there in no benefit to the facuance of a low power license based on the mere subminnion of such plano unican and until the utility demonstrates, "to the satisfaction of the Comminaion, that ade-quate interim compenaating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation." 10 C.F.R. S 50.4 7(c) (1) .

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1 This reading of SS 50.47(c)(1) and 50.47(d) is fully con-i l

sistent with the Commission's decision in Shoreham. There, the l Commission stated that "The measure of signficance (of defects in emergency plans) under (1) and adequacy (of compensatory <

measures] under (2) is the fundamental emergency planning stan-dard of section 50.47(a) that "no operation license ... will be issued unless a finding is made that there is reasonable  !

assurance that adequate protective measures can and will be taken in the event of a radiological emergency." Id. a t 10 (enphasis added). Thus, the Commission clearly recognized that the showing necessitated by 5 50.47(c)(1) prior to the issuance of a low power license where compensatory plans have been submitted requires full adjudicatory hearings, with an opportunity for i cross-examination, and findings as ta the adequacy of the plans.  ;

In this case, by contrast, there has been no opportunity for any of the parties to even review the so-called " utility plan" sub-mitted by Applicants, much less litigate them. Therefore, Applicants so-called "u tility plan," on its face, does not satisfy the requirement of 5 50.33(g) or S 50.47(c) (1), and no low power license can be issued.

III. CONCLUSION Decause Applicants have not submitted a " State and local government" plan, and because no findings exist as the question of whether the so-called " utility plan" provides reasonable assurances that adequate protective measures can and will be 1

taken in the event of a radiological emergency, Applicants are

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l not entitled to a low power license. Hence, NECNP has a substan- '

tial likelihood of prevailing on the merits, and the Appeal Board f should stay the issuance of a low power license for the Seabrook j nuclear power plant.

Respectfully submitted, ,'  !

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s ";5_Q f c"?[ /

Andrea Fe rster Diane Curran HARMON & WEISS 2001 "S" Street N.W. Suite 430  ;

Washington, D.C. 20009 t (202) 328-3500 l April 23, 1987 i i

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