ML19332D829
| ML19332D829 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/22/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#489-9508 ALAB-924, LBP-88-32, LBP-89-32, LBP-89-33, OL, NUDOCS 8912050292 | |
| Download: ML19332D829 (12) | |
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CXKETED trmC November. 22,.1989
'89 NOV 24' A11 :22-
-UNITED STATES OF AMERICA
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'before the
[
l NUCLEAR REGULATORY COMMISSION
.In-the Matter of PUBLIC. SERVICE COMPANY' Docket Nos. 50-443-OL OF NEW HAMPSHIRE,' at al.
50-444-OL (Seabrook Station,~ Units 1 (Offsite Emergency 1
- and 2)
. Planning and-Safety Issues)
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' APPLICANTS 8' ANSWER TO INTERVENORS' MOTION FOR
. RECONSIDERATION OF. COMMISSION'S NOVEMBER 16 ORDER l
.Under dateJof November-17, 1989,- The Attorney' General of The' Commonwealth'of~~ Massachusetts (MAG), on. behalf of himself, New
' England Coalition on Nuclear Pollution (NECNP), and Seacoast Anti-Pollution League (SAPL), filed a " Motion for Reconsideration
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t of Commission'cLNovember 16 Order" ("the Motion").
Applicants
.herein reply to the Motion even though in light of-the Commission's Order of November 20, 1989:lt may be that this reply 4
is unnecessary inasmuch as the Oreder appears to be a denoial of-all portions of the Motion not particularly granted.
The first portion of'the Motion (pp. 2-3) is devoted to a dissertation as to why the Licensing Board allegedly had no authority to issue the license authorization contained in its recent Partial Initial Decision, Public Service Comoany of New i
C016MORE.SB 8912050292 891122 PDR ADOCK 05000443
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, Hamoshire (Seabrock Station, Units 1 and 2), LBP-89-32, 30 NRC 1
'(Nov. 9,.1989) (hereafter referred to as "PID" and cited to
.the slip opinionj.
The first reason given is the fact that the-Appeal Board previously " reversed LBP-88-32 (a prior PID which found the New Hampshire planning for the Seabrook EPZ appropriate) in-four particulars."
Motion at 2.
The reference
- is of course to the Appeal Board's decision in Public Service-Company of New Hamoshire (Seabrook Station, Units 1 and '2), ALAB-924, 30 NRC (Nov.-7, 1989) (hereafter referred to as "ALAB-924" and cited to the slip opinion).
What the Motion fails to note is that in ALAB-924-before the " reverse and remand" portion 4
of its Order, the Appeal Board also made the following order:
with respect to intervenor claims on those portions of the Licensing Board's December 30, 1988-partial initial decision.
LBP-88-32, 28 NRC 667, and related rulings regarding ' Letters of Agreement,'
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' Transportation Availability and Support services,' ' Decontamination and reception Centers,' and ' Sheltering of Beach Population' the Board's initial decision and related rulings are affirmed except insofar as the Board (then follows the four particulars]"
ALAB-924 at 70 (emphasis in original.
In short, all of the findings, presumably including the general
" reasonable assurance"= finding made with respect to each section
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of the PID were affirmed by the Appeal Board.
i Next, it is argued that the Appeal Board decision requ res additional " hearings" at least with respect to one of the matters f
.3 remanded. To begin with, one cannot find the direction to hold hearings ID haec verba anywhere in ALAB-924.
All that was ever -
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said was that " additional proceedings" were to be had. LAs the Intervenors themselves appear.to acknowledge, Motion at 3, i
- " proceedings" is not a synonym for " hearings."
The next argument as to why the Licensing Board erred in authorizing. full' power operating authority is that the Licensing Board "provided no findings.or reasons supporting its license Lissuance in light of the reversal of LBP-88-32."
Motion at 4.
The: Licensing' Board did, in fact, provide reasons.
ElQ at 569 &
- n.87~.
To be sure it left the detailed exposition of those reasons to a later date.
Id. And on November 20, 1989, the reasons were set-forth in Public Service Comoany of New Hamoshire (Seab' rook Station, Units 1 and 2), LBP-89-33, 30 NRC (Nov.
20,'1989) (hereafter "LBP-89-33").
Thus this point is moot.
In any event, the original decision to defer the explanation of reasonss was perfectly proper inasmuch as.the' licensing authorization was specifically made subject to the provisions 10 CFR $'2.764, which the Licensing Board was aware, and indeed the Appeal Board in a later order has acknowledged,' would result, pending.the review by this Commission under this section, in the provision of more than sufficient time for the Licensing Board to have an opportunity to explicate fully its reasoning before actual license issuance will be in order.
And it has done so.
The next error urged in support of the argument that the Licensing Board was without authority to authorize full power operation is the fact that there is presently before the lAppeal Board Unoublished Order of Nov. 14, 1989 at 2.
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Commission a certified question as to "the nature of the legal g
standard applicable to emergency planning."
Motion at 4.
This
'is'so,.but itjis;of no moment.
An. order certifying a question or the taking-of'an appeal does not, under the commission's rules of l practice, operate +to oust an adjudicatory board of the power to proceed cni matters.within its jurisdiction and still before it i
. absent a specific order to the contrary.
Egg 10 CFR 5 2.730(g);
10 CFR 5 2.786 (b) (8).
The last error argued is that:
" Finally, and perhaps most astoundingly, the Board, in two particulars as applied to the utility plan simply repeated the very legal errors it had committed in LBP-88-32 as held by the Appeal board in ALAB-924, thus ignoring'the doctrine of stare decisis and the law of the case "
Motion at 4.
Unfortunately, we.are unenlightened as to which two particulars of the 571 page decision the Intervenors'are referring to.
After the foregoing arguments as to why the Licensing Board has committed error, MAG goes on to describe the procedural history of this matter leading up to the Commission's order of November 16, 1989, the Order at issue.
This' explication is then followed by'the discussion of four alleged reasons as to why reconsideration of the order should be granted.
The first two reasons.are more akin to threats or hysteria than to legal
' arguments.
First we are told that the events leading up to the j
issuance of the order at issue, "have produced the appearance in the eyes of the Intervenors and the public that adjudication before this agency is a sham and that the Licensing Board hac l ;
I acted'in bad faith."
Insofar as the statement refers to the Intervenors, it'is a faniliar refrain and doubtless comes as no surprise to the Commission.
However, the' intemperate remarks of I
The Attorney General of The Commonwealth of Massachusetts and his associates and those made to the media in the Seabrook-proceeding themselves bespeak as to who respects legal process.
As to the assertion that "the public" agrees with MAG: to say that one speaks for the public is always presumptuous and sometimes foolhardy.
There certainly is a large element of the public that would properly applaud the effort of this agency to avoid unnecessary delay.
Had the stay decisions remained with the Appeal Board there is no doubt that whichever party had been disappointed with the result would have brought it to this Commission for final administrative resolution.
The exercise of lhaving the. Appeal Board address the stay question is truly and simply an exercise in delay in the circumstances of this case.
Second, a threat is made that the D.C.
Circuit will hold the Commission in bad faith if it proceeds on its course.
Now MAG speaks for.the Court of Appeals!
And he does so from erroneous premises.
He states the Licensing Board acted, "[w]ithout even
' deciding the admissibility of Intervenors' outstanding contentions challenging the scope of the September exercise."
Motion at 7.
But the Licensing Board did not do that; it said that had decided that the pendency of several motions to submit contentions did not preclude the insuance of the license and it would explain in a later memorandum why this la so.
EID at 569,
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It has explicated its views on certain of these matters in
-the recently issued LBP-89-33 and has promised rapid action with 3
respect to the remainder. lAs stated above, in the circumstances-of this case where the actual issuance of the license is made
' subject to the provisionc of 10 CFR 5 2.764, there is nothing improper about the procedure adopted by the Licensing Board.
And certainly it comes nowhere near " bad faith."
The third argument made for reconsideration is an argument that the Intervenors have suffered immediate and irreparable harm as a result of the order at issue.
Motion at 8-13.
The first alleged ~ injury is that the intervenors will be precluded from including in what are supposed to be "brief comments," 10 CFR 5= 2.764 (f) (2) (ii), from commenting upon (1) the Licensing Board's explanatory memorandum; (2) the Commission's answer to the certified question; and (3)-the Licensing Board's decisions as to L
" outstanding contentions."
This argument borders on the absurd.-
The Commission has built in an eight day period not only to comment but also to argue with respect to the first and third items.- As to the second, there is never a right to " comment" on Commission-answers to certified questions.
Presumably anything of merit that Intervenors had to say on the certified question has already_been included in their brief with respect thereto.
And, in any event, the Commission has now extended the comment period by its Order of Nov. 21, 1989, so the issue is moot.
l The second reason given as to why immediate irreparable l-injury has been incurred by the Intervenors is that this L
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1 Commission allegedly improperly treated the Intervenors' November-j 13 Motion to vacate as a stay motion.
It is claimed that that motion ~is a " merits based" motion and should not be treated as a i
motion for a stay.
It is hardly surprising that this commission j
treated that motion asione.for a stay, given the moving language of the motion:
"Intervenors move this Board for an order immediately vacating and revoking the license I
authorization set forth-in LBP'89-32.
To the extent necessary to support such action, Er
-in the alternative Intervenors hereby move that this Board bifurcate review of LBP 32, separating those portions of that decision that authorized license issuance, immediately review that portion and, pendina such review stay the effectiveness of that Dortion.
In succort of this stav reauest Intervenors state that: (there follows an abbreviated'and rather weak analysis of the matters required to be addressed under the stay Rule of Practice, 10 CFR S 2.88(e))."
Intervenors Motion to Vacate Those Portions of LBP-89-32 Authorizina Issuance of a Seabrook Operatina License at 6 (emphases supplied).
In light of the foregoing we think it is a little late in the day for-the Intervenors, assuming it was relevant to anything, to deny that their November 13 motion is a stay application.
In any event, all of the reasons upon which they base their claim of irreparable injury from the alleged wrongful treatment of their November 13 motion as a stay motion, save one, are mooted by the 1
fact that the Commission is allowing them a full opportunity to brief and argue the alleged error of the Licensing Board in L
issuing the authorization despite the prior issuance of ALAB-i l-924.
The one not so mooted is their reason number 3, Motion at -.
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11-12, where it is suggested'that the regulatory basis asserted by the Commission for taking the motion is in error.
To make this argument, the Intervenors begin by asserting that the only regulatory basis asserted by the Commission for its action was 10 CFR S 2.764 (f) (2) (iv).
They blithely ignore the citation also at page 2 of the Order in question of Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516, 517 (1977), aff'd gub D2E., New Encland Coalition on Nuclear Pollution v. HES, 582 F.2d 87 (1st Cir. 1978).- This decision is but one in a venerable line of authority that the Commission has the power to take immediate jurisdiction and review at any time over any matter before any of its adjudicatory tribunals.
Accord, U2S.E.R.D.A.
(Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 74-76 (1976); Florida Power & Licht Company (St.
Lucie Plant, Unit Nos. 1 and 2), CLI-77-15, 5 NRC 1324, 1325 (1977).
CONCLUSION The Motion should be denied.
Respectfully submitted, A?f ) '/
sws
-Thomas'G. Dfgnan, Jr.
George H. Lewald Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook William L.
Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Applicants -..
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cnw u.gc CERTIFICATE OF SERy_1.CX
'89 N9V 24 A11 :22 I, Thcmas G.
Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on November 22,ir1989, I,.
made service of the within document by depositing copi~ess.thereof with Federal Express, prepaid, for delivery to (or where l' u:
indicated, by depositing in the United States mail, first class postage paid, addressed to) the individuals. listed below:
.Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 James R. Curtiss, Commissioner U.S. Nuclear Regulatory Commission.
One White Flint North 11555 Rockville Pike Rockville, MD 20852 Kenneth C. Rogers, Commissioner William C.
Parler, Esquire U.S.
Nuclear Regulatory General Counsel Commission Office of the General Counsel l
.One, White Flint North one White Flint North 11555 Rockville Pike-11555 Rockville Pike L
Rockville, MD 20852 Rockville, MD 20852 I
L G.
Paul Bollwerk, III, Chairman Howard-A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing L
Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission L
East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 l
Alan S. Rosenthal, Esquire Thomas S. Moore l
Atomic Safety and Licensing Atomic Safety and Licensing l
Appeal Panel Appeal Panel I
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway l
Bethesda, MD 20814 Bethesda, MD 20814 i
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-Administrative Judge 1Ivan Smith Administrative Judge Kenneth A.
Chairman, Atomic Safety and McCollom LLicensing Board 1107 West-Knapp Street c
U.S. Nuclear Regulatory _
Stillwater, OK 74075
-Commission East West Towers Building H
4350 East West Highway H
Bethesda, MD 20814 Administrative Judge Richard F.
H. Joseph Flynn, Esquire Cole, Atomic Safety and Office of General Counsel Licensing Doard Federal Emergency Management U.S. Nuclear Regulatory Agency
-Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway l
Bethesda, MD 20814-Mr. Richard R.
Donovan Diane Curran, Esquire Federal Emergency Management Andrea C.
Ferster, Esquire Agency Harmon, Curran &~Tousley Federal-Regional Center Suite 430 130 228th Street, S.W.
2001-S Street, N.W.
Bothell, WA 98021-9796 Washington, DC 20009 Robert R.
Pierce, Esquire John P. Arnold,-Esquire Atomic Safety and Licensing Attorney General Board George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General P
Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397
-Bethesda, MD 20814 L
Adjudicatory File Mitzi A. Young, Esquire L
Atomic Safety and Licensing Edwin J. Reis,_ Esquire l
Board Panel Docket (2 copies)
Office of the Gencral Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory L
Commission Commission East West-Towers Building One White Flint North, 15th Fl.
l 4350 East West Highway 11555 Rockville Pike j,
-Bethesda, MD 20814 Rockville, MD 20852 l-
- Atomic Safety and Licensing Robert A.
Backus, Esquire L
Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street L
Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 L.
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L, Philip Ahrens, Esquire Mr. J.
P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road j
F General Rye, NH -03870 l
Augusta,,ME- 04333
- Paul-McEachern, Esquire John Traficonte, Esquire Shaines & McEachern
. Assistant Attorney General Maplewood Avenue Department of the Attorney P.O.
Box.360
' General Portsmouth, NH 03801 One Ashburton Place, 19th Floor Boston, MA 02108 Chairman.
Mr. Calvin A.
Canney Board of Selectmen City Manager
-95 Amesbury Road City Hall Kensington, NH 03833 126 Daniel Street Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC. 20510 Rotondi (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 Mr. Thomas F. Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH- 03833 Ashod N. Amirian, Esquire Judith H. Mizner, Esquire 145 South Main Street 79 State Street, 2nd Floor P.O.
Box 38 Newburyport, MA 01950 Bradford, MA 01835 Gary:W. Holmes, Esquire Richard A., Hempe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301
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a Marjorie'Nordlinger, Esquire office of the General counsel One White Flint North 11555 Rockville Pike Rockville, MD 20852 M
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