ML20006F405
| ML20006F405 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/16/1990 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-9915 ALAB-924, LBP-89-32, LBP-89-33, OL, NUDOCS 9002280004 | |
| Download: ML20006F405 (16) | |
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UNITED STATES OF AMERICA
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-before the
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. ATOMIC SAFETY AND LICENSING APPEAL BOARD 4
In the Matter of PUBLIC. SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE, A.t al.
50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2)
Planning Issues)
APPLICANT 8' -RESPONSE TO ENERGENCY NOTION OF INTERVENOR8:
(1) TO CLARIFY THE BTATUS OF THE APPEAL OF LBP-89-33 i'
AND (2) - TO REOPEN THE RECORD ON THE NERERP-A8-TO THE NEED FOR SHELTERING IN CERTAIN CIRCUN8TANCE8 Introduction Under date of February 1,'1990, certain Intervenors herein have-filed a document styled:
" Emergency Motion of Intervenors:
(1) to Clarify the Status of the Appeal of LBP-89-33 and (2) to Reopen the Record on the NHRERP as to the Need for Sheltering in Certain Circumstances" -(Motion).
In addition, although not mentioned in the title, the document contains yet a third motion which is a motion for summary disposition.1 The gravamen of the m
'To which there is a twenty-day response period.
Such a
. tag-along certainly does not help lend. credence to the request for expedited consideration.
CLAREREP.58
}hh) 9002280004 900216
.PDR ADOCK 05000443 0
,e Motion is a document which the Applicants filed with the Licensing Board of February 1, 1990, in-response to a Licensing Board Order directing the parties "to advise the Board on how to proceed in accordance with the directives of ALAB-924.
"2 In-that document, Applicants made two statements which gave rise to.the Motion.
The first was the statement quoted at Page 3 of the Motion to the effect that LBP-89-33 is now the law of the-case, the Intervenors having failed to preserve any appellate right as to that decision.
The second is apparently the following statement:
"During the hearings on the NHRERP, FEMA took the position, through its witness Joseph Keller, that evacuation (when physically possible) would always be the preferable protective action for the Seabrook beach population in light of, inter alia, the uncertainties of release composition and duration, the effects of groundshine, and the poor quality of the phalter available-in the Seabrook beach area.
This FEMA position was
. vigorously contested by the Intervenors, both at trial.and on appeal, and was upheld by both tpe Licensing Board and the Appeal Board.
In October 1988, the NHRERP, Rev.
2, Vol. 4, Appendix F was revised to conform to the FEMA position that was litigated (and subsequently upheld):
at step IV.B.4 (General Emergency) it is recommended to evacuate ERpA=A, an approximate two-mile radius that includes Hampton and.Seabrook beaches, based on a declaration of a General Emergency subject only to constraints to
-evacuation.
This revision to bring the plan into conformity with the FEMA position was 2Memorandum and Order (recardina Issues Remanded in ALAB-1111 (Jan. 11, 1990) at 1.
3(Note 29 in orig). (ALAB-924) at 52-55.
'[ Note'31 in orig). Id. at 55-58..
e served on the Boa [d and parties on October 13, 1988.
The effect of the chance ig_1p eliminate shelterina as an ootion under the first of the two circumstances i
contemolated by the Aeneal Board.
Since shelterina is no lonaer a clanned orotective action ootion under those circumstances. no imolementina detail is reauired in that case."'
In-particular, it is the words set forth with emphasis upon which the.Intervenors' base the Motion.
Applicants _ address below the various requests included in the Motion.
I.
The Motion to Reonen Should be Denied Introduction Prior to addressing the merits of the Motion insofar as it
.is a motion to reopen, it would be well to focus upon two-introductory matters.
The first is what the Applicants' filing was.
This filing was in response to a Licensing Board request to describe for the Licensing Board what steps needed to be taken in the event ALAB-924 is not reversed by the Commission and further proceedings (not necessarily hearings) are necessary before the.
Licensing Board.
It was a disclosure of future positions to be
'taken and legal theories to be argued.
It was not a document which operated to make any change in NKRERP which, like any
!(Note 32 in orig).
Egg Letter of G. Huntington, Assistant Attorney General of New Hampshire, to Chairman I. Smith, Atomic Safety'and_ Licensing Board, October 13, 1988, and enclosures thereto.
'Acol icants ' Resoonse to Licensina Board Order of Januarv-11.~1990 (Feb.
1, 1990) at 9-10 (emphasis added).........
at 4
- document, speaks for itself.
Tne Applicants' filing represents no more or less than a lawyer's argument insofar as it purported to interpret the N!!RERP.
A second matter which has been lost sight of by the
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Intervenors is the nature of the Licensing Board decision which is on review before this Appeal Board.
A Licensing Board finding of adequacy with respect to a radiological emergency response _
plan is a predictive finding and it is anticipated that it may well be made before plans are complete.#
Ear contra it is not anticipated that an emergency plan will remain rigid.
- Indeed, emergency planning is an exercise which virtually dictates that
- changes ~to plans are constantly being made as it is adjusted to changing conditions and emphases and advances in knowledge.
Thus, it may well be that an emergency plan will, at FEMA's direction or.upon a state's decision, change not only between the time a record closes and an initial decision is made but also between the time that decision is made and appeals within the
. agency and to the. courts are exhausted.
It-would indeed be bad-policy to encourage the freezing of a plan during the often lengthy NRC appellate process by holding that every opponent of the plant in question can have an opportunity to obtain a delay with more hearings and proceedings every time a change is made.
What is legitimately up for review on the appeal of a Licensing i
Board ruling on an emergency plan is the issue of whether the IE.g.,
Louisiana Power and Licht Comoany (Waterford Steam L
Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103-04 (1983),
and authorities there cited.
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evidentiary record before that. licensing board supports the overall predictive finding and-the subsidiary findings which-undergird it.
Any other rule means chaos and encourages delay in the implementation of changes which FEMA or the state deems necessary to further the goal of protecting-the public health and safety.
In the case at bar, the evidentiary record on the NHRERP had long since closed when the Board was notified of the October, 1988, changes by the State of New Hampshire.
The only job'of the Licensing Board was to decide whether the record before it, which clearly did contain the " puff release" shelter in place option, c
demonstrated the requisite reasonable _ assurance necessary for the required credictive finding.
And all that is before this Appeal Board on appeal is whether that evidentiary record supports that finding.
A.
The Appeal Board is Without Jurisdiction to Entertain the Motion Insofar as it is a Motion to Reonen.
Intervenors state that this Appeal Board has jurisdiction over-the Motion insofar as it is a motion to reopen.s The entire argument ignores the fact that in its decision making the remand to'the Licensing Board, the Appeal Board required the Licensing Board to deal with-the implementing detail only "so long as" the sheltering options discussed remained in the plan.'
Clearly, the Licensing Board was given authority, inter alia, to entertain the sMotion at 14-15.
'ALAB-924 at 59..
9-
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issue of.whether they should remain in the plan.
.This argues for the jurisdiction over the motion to reopen aspects of the Motion lying'with the Licensing Board.
Further, a petition for review seeking reversal of this Appeal Board's holding on beach shelter has been filed with the Commission, and thus, arguably, the jurisdiction to reopen the NHRERP phase of the Seabrook proceeding on.the issue of interest lies with the Commission."
The one place it would seem not to lie, in the circumstances, is with the Appeal Board.
B.
Whether the Applicants Were Right or Wrong on Their Reading of the NHRERP, the Motion Insofar as it is a Motion to Reonen should be Danied.
1.
Since the-Applicants are Wrong, the Basis for the Motion is Gone.
After filing their response to the Licensing Board Order, the Applicants were in receipt of a communication in addition to the Motion at bar.
This was a communication from counsel for the State of New Hampshire who notified the Applicants that New Hampshire did not agree with the Applicants' statement that the October, 1988, changes had the effect of changing the planned
-response in the event of a planned " puff release."
We anticipate that New Hampshire will be making a filing to that effect.
Applicants do of course acquiesce in that position for the simple reason that it is New Hampshire's plan and New Hampshire is the NEgg Philadelnhia Electric Comoany (Limerick Generating Station, Units 1 and 2), ALAB-823, 22 NRC 773 (1985).
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final arbiter of what the plan language does or does not mean.
New Hampshire's position of course dooms the Motion insofar _as it is a motion to reopen for the simple reason that its basic
- premise,~1.g., that the changes in October, 1988, changed the planned response to a planned " puff release", is gone.
2.
Even If the Applicants Were Correct, the Motion still should be Denied.
a..
The Absence of an Affidavit is Fatal.
The Motion is unaccompanied by any affidavit as required by 10 C.F.R. 5 2.734(b).
"(T]he Commission expects its adjudicatory.
boards to enforce the section 2.734-requirements rigorously --
i.e.,
to reject out-of-hand reopening motions that do not meet those requirements within their four corners.""
One of those requirements is "an affidavit as required in 5 2.734(b) describing (1) the Intervenors' satisfaction of the three factors enumerated in 5 2.734(a) and (2) the technical basis for the
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Intervenors' proposed contention."12 Intervenors eschew the need for any affidavit on the theory that they_can rely on the uncontradicted representations of Applicants' counsel and the decision in ALAB-924.0 To begin with, the statements of counsel as to interpretations of the NHRERP are not the stuff of which "Public Service Comnany of New Hamnshire (Seabrook Station, Units 1 and 2), ALAB-915, 29 NRC 427, 432.(1989).
12Lona Island Liahtina Co (Shoreham Nuclear Power Station, s
Unit 1), 29 NRC 89, 93-94 (1989).
13Motion at 17-18.
4.
--m m.
,T in affidavits are made.
More to the point, we understand they will be contradicted by the State of New Hampshire.
Egg infra.
But even'if they were not and were correct in full, this avails the Intervenors nothing.
The regulation is clear:
"The motion must be accomoanied by one or more affidavits which set forth the factual and/or technical bases for the movant's claim that the criteria of caracraoh (a) of this section have been satisfied.
Each of the criteria must be separately addressed, with a spap'ific explanation of why it has been met."
There is no leeway here.
The Motion must be accomoanied by an affidavit.
Each criterion must be seoarately addressed, with a specific explanation of why it has been met.
The criteria to be addressed include " timeliness" and " materially different result" as well as the existence of a significant safety issue.
The Intervenors'-filing addresses none of these matters by affidavit.
And Applicants' filing and this Appeal Board's decision in ALAB-924'cannot serve as a surrogate for the affidavit."
The absence of an affidavit is fatal.
"10 C.F.R 5 2.734 (b) (emphases supplied).
"That agency or applicant documents might serve to substitute for an affidavit may have been an acceptable practice when motions to reopen were governed by decisional authority.
Egg Vermont Yankee Nuclear Power Core. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 364 (1973).
However, the requirement for an affidavit was specifically included in 10 C.F.]R l' 2.734 (b) and thus overruled that case law.
Criteria for Reonenina Records in Formal Licensina Proceedinas, 51 Fed. Reg,
,19535, 19537 (May 30, 1986).
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b.
There has Been no Showing That There
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is a significant safety Question 1
Involved.
The inclusion Egl Dnn of a PAR of such low probability as is
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' involved here is simply not a significant safety 1ssue."
More 1
- importantly, FEMA has approved the October, 1988 changes-and continues to find'the plan adequate.
In light of these facts, there is neither a significant safety issue, nor a likelihood i
h that a different result would have been reached.'7 L
c.
The Nation is not l
Timely.
The.only argument that Intervenors make as to timeliness is l..
that the Applicants are estopped by their own actions from 1
asserting that the Intervenors were on notice'as of October, 1988, of the plan change perceived by the Applicants.
Accepting arauendo that premise, the motion-still is not timely.
L
. Applicants' counsel freely concede that they did not, until L
, December 8, 1989,-reach the conclusion as'to the plan change they asserted in the February 1, 1990 filing."
However, on "The low-probability referred to in the text is Dnt the low L
l probability of the accident, but, rather,. assuming the accident,.
the' low probability of the occurrence of a planned " puff release" with people on the beach.
IIggg Philadelnhia Electric Co. (Limerick Station, Units 1 and 2), 23 NRC 130 (1986).
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"Intervanors suggest that Applicants had an obligation to advise the Licensing Board of the conclusion they had reached and its significance and to change a then extant proposed finding.
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December 8, 1989 Applicants filed with the Commission l
"Anolicants' Resoonse to Intervenors' Immediate Effectiveness l
Review Comments. Stav Reuuests apd Sunclement to Intervenors' Motion to Vacate Those Portiopp of LBP-89-32 Authorizino Issuance of a seabrook operatina License."
In that document at Page 31 and n.86 thereon it was made crystal clear that Applicants interpreted the plan change of October, 1988, in the manner asserted in the February 1, 1990 filing.
The text referred to the resolution between the State and FEMA of implementing detail and dropped a footnote at that point as follows:
"" Letter Huntington to Judge Ivan W. Smith (October 13, 1988).
That resolution makes evacuation the recommended protective action within 2 miles in all circumstanega except when impediments make evacuation impossible."
(Emphasis added.)
At a minimum that is when the clock started to run on this matter for the Intervenors, assuming the Applicants' interpretation had However, the conclusion had not been reached as of those dates.
And, in any event, the notice from the New Hampshire Assistant Attorney General accomplished all of the notice that is required L
and the proposed finding still stood on the record as made.
L Intervenors also point to an Appeal Board argument and suggest a disclosure should have been made.
However, a review of that l
transcript will reveal that what was being inquired of was the 4
contents of the Licensing Board decision not the extant contents of the plan.
Had the interpretation suggested in the February 1, l
1990 filing been made as of that time, and assuming perfect l
memory, the " disclosure" would have been made.
Nor had the l
interpretation been made as of the time the Petition to Review ALAB-924 was filed when a reference was made therein to the " puff release" shelter option.
Aeolicants' Petition-for Review of ALAB-924 (Nov. 10, 1989) at 9.
Actually, none of this relieves I
the Intervenors of their burden of showing that they did not know L
(which apparently they did not) and that they should D21 have known.
If Applicants' suggested reading of NHRERP had been correct, then the Intervenors would have been charged with knowledge of it as of october 13, 1988. i i
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.o been correct.
The Motion was not filed until two months (60 days) later.
Intervanors' statement at Page 2 of the Motion, in referring to the Applicants' Tebruary 1, 1990 filing: "Further, j
astoundingly the Applicants now assert 12I tha first ting that an i
October 10, 1988 plan revision to the NHRERP effectively eliminated (the puff release shelter in place option)" is simply i
in error.
The Motion insofar as it is a motion to reopen is not
- timely, i
The Motion insofar as it is a motion to reopen should be denied, and the accompanying motion for summary disposition is therefore moot.
l II.
INSOFAR AS TEE NOTION SEEKS A DECLARATION TEAT THE INTERVENORS EAVE PRESERVED TERIR APPELLATE RIGHTS AS To LBP-89-33, IT 5700LD ALSO BE DENIED.
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That portion of the Motion which seeks clarification of the t
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status of the " appeal" of LBP-89-33 should also be denied.
There are two prerequisites to the preservation of a matter on appeal from a licensing board decision:
the filing of a notice of appeal and the filing of a brief in support thereof.
Litigant-1 invented motions for " mandamus" (a remedy not found in the Commission's rules of practice) or its equivalent do not get the job done.
And comments filed in connection with an immediate offectiveness review likewise do not preserve appellate rights.
The Commission may, indeed, properly disregard any comments made
Indeed, if one reviews the supplemental mandamus-type motion, one finds no reference to LBP-89-33 in the moving part of the motion.
Thus, even if one could preserve an appellate right i
l by such a device, they simply have not.
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to it arguing that LBP-89-33 is in error.
The error has not been
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preserved except to the extent that the Appeal Board elects to take gun sponte review of it.
In addition, the argument that this Appeal Board had its jurisdiction over LBP-89-33 taken away l
30 by the commission is wrong.
The commission took only the Motion to Vacate and directed stay motions to be filed with it.
The normal review of LBP-89-32 (and LBP-89-33) were left with the Appeal Board.
The Motion insofar as it is a motion to clarify appellate rights should be denied.
4 Respectfully submitted,
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D g sn, Jr.
j+w-Womas G.
George H. Gwald Kathryn A. Selleck Jeffrey P. Trout Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 counsel for Applicants 20Motion at 5. =
o 00CKElED CERTIFICATE OF SERVICE V5NRC j
I, Thomas G. Dignan, Jr., one of the attorneys f t
Applicants herein, hereby certify that on February
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I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery $oCt(9FiECRElAhY g
where indicated, by depositing in the United States gep(1WG A SlWICI-first class postage paid, addressed to):
BRANCH Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel l
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 Bethesda, MD 20814 Bethesda, MD 20814 Thomas S. Moore Mr. Richard R.
Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.
i East West Towers Building Bothell, Washington 98021-9796 4350 East West Highway Bethesda, MD 20814 Administrative Judge Ivan W.
H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency r
Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F.
Gary W. Holmes, Esquire Cole Holmes & Ells Atomic Safety and Licensing Board 47 Winnacunnet Road U.S. Nuclear Regulatory Ccamission Hampton, NH 03842 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.
Judith H. Mizner, Esquire i
McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 l
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t George Dana Bisbee, Esquire Robert R. Pierce, Esquire l
Associate Attorney General Atomic Safety and Licensing t
Office of the Attorney General Board i
25 Capitol Street U.S. Nuclear Regulatory Concord, NH 03101-6397 Commission East West Towers Building 4350 East West Highway i
Bethesda, MD 20814 Mitzi A. Young, Esquire Diane Curran, Esquire Edwin J. Reis, Esquire Andrea C.
Ferster, Esquire Office of the General Counsel Harmon, curran & Tousley U.S. Nuclear Regulatory Commission Suite 430 One White Flint North, 15th'F1.
2001 S Street, N.W.
11555 Rockville Pike Washington, DC 20009 Rockville, MD 20852 Adjudicatory File Robert A. Backus, Esquire Atomic Sc!ety and Licensing 116 Lowell Street Board Panel Docket (2 copies)
P.O. Box 516 U.S. Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Suzanne P. Egan, City Solicitor Appeal Board Lagoulis, Hill-Whilton &
U.S. Nuclear Regulatory Rotondi Commission 79 State Street Washington, DC 20555 Newburyport, MA 01950 Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General Department of the Attorney Department of the Attorney General General Augusta, NE 04333 One Ashburton Place, 19th Fl.
Boston, MA 02108 Paul McEachern, Esquire Barbara J. Saint Andre, Esquire Shaines & McEachern Kopelman and Paige, P.C.
25 Maplewood Avenue 77 Franklin Street P.O.
Box 360 Boston, MA 02110 Portsmouth, NH 03801 R. Scott Hill-Whilton, Esquire Ashod N. Amirian, Esquire Lagoulie. Hill-Whilton &
145 South Main Street Rotondi P.O. Box 38 79 State Street Bradford, MA 01835 Newburyport, MA 01950 i u
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- Senator Gordon J. Humphrey
- Senator Gordon J.
Humphrey U.S. Senate One Eagle Sqilare, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn:
Tom Burack)
(Attn:
Herb Boynton) l G.
Paul Bollwerk, III, Chairman George Iverson, Director Atomic Safety and Licensing N.H. Office of Emergency Appeal Panel Management U.S. Nuclear Regulatory Commission State House Office Park South East West Towers Building 107 Pleasant Street 4350 East West Highway concord, NH 03301 Bethesda, MD 20814 1
Mr. Jack Dolan Federal Emergency Management Agency Region I J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 ma a
Thtdias G."DigturTF, Jr.
(*= Ordinary U.S. First Class Mail.)
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