ML19263B554
| ML19263B554 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/21/1978 |
| From: | Sheldon K SHELDON, HARMON & WEISS |
| To: | |
| References | |
| NUDOCS 7901180385 | |
| Download: ML19263B554 (7) | |
Text
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NRC Pty.
UNITED STATES OF AMERIC.
N NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
PUBLIC SERVICE COMPANY
)
Docket Mos. 50-443 OF NEW HAMPSHIRE,
)
50-444 f,
n n-e#p,f g i
(Seabrook Station, Units )
'j' C 1 and 2)
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gy V(/
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NECNP Motion to be ey, V Q,
Excused From Evidentiary Hearings Q
{d' The New England Coalition on Nuclear Pollution (NECA or the Coalition) requests to be excused from participation in the evidentiary hearing on the Staff's analysis of alter-native sites for the Seabrook Nuclear Power Plant which is scheduled for January 15, 1978.
NECNP further requests permission to file proposed findings of fact and conclusions of law on the Staff's testimony and the record of the hearings as developed by the Staff, the Applicant and the Seacoast Anti-Pollution League /Audubon Society of New Hampshire (SAPL/
Audubon).
NECNP makes this request because of the present circum-stances surrounding Seabrook and the inability of the parties to reach an agreement which would have made hearings on the Staff's alternative sites analysis unnecessary.
NECNP did not intend to request a hearing on the alternative site analysis prepared by the NRC Staff.
NECNP reviewed the Staff testimon; and found it to be an obvious improvement over 790118o385' earlier alternative site examinations.
It was apparent that considerable effort had been expended by the group of Staff members assembled for the purpose of conducting the analysis.
Credit for this effort is due in large measure to the combined diligence of Jerry Klein, Section Leader of the Environmental Specialists Branch, who directed the group and Larry Brenner of the Office of the Executive Legal Director.
The testimony did not eliminate all of the Coalition's concerns about the methodology and analytical bases of the Staff's work.
In particular, NECNP had questions about the operating definition and application of the "obviously superior" standard, and the degree to which both sunk econo-mic and environmental costs were implicit in the Staff analy-sis.
NECNP also disagreed with the Staff conclusion that the Phillip's Cove site is not obviously superior to Seabrook from an environmental standpoint.
However, gfven that Seabrook is nearly 20% complete and the Court f Appeals for the First Circuit endorsed both the obviously stjerior princi-ple and the attribution of sunk costs in the comparison of sites, the Coalition did not regard an ev13entiary hearing as a necessary or fruitful effort to resolve thece difficulties.
Indeed, the exercise seemed, at best, hypothetical.
Recognizing the reality of the situation, and at the same time aware of the need for a decision by the Appeal Board which wculd resolve the cutstanding question about the legal adeqbacy of Staff's analysis, NECNP expended considerable effort to reach an agreement with the other parties which would have made any hearings unnecessary.
Specifically, NECNP was willing to agree (1) that the statements of fact set forth in the Staff testimony are correct; (2) that when the economic costs involved in changing to an alterna-tive site are taken into account, as directed by the NRC and approved by the First Circuit Court of Appeals, there is no site "obviously superior" to Seabrook, and (3) that on an environmental basis alone, when the Seabrook site as it is today is compared to alternative sites there is no justification for moving to another iLte.
NECNP was also willing to agree that it would not contest the Staff's conclusion that no site is obviously superior to Seabrook even in the absence of sunk environmental costs, although it disagreed with this conclusion.
As an alternative approach, NECNP also discussed with the NRC Staff the preparation of a set of stipulated facts from the Staff testimony which could serve as the basis for proposed findings of fact and conclusions of law and would allow the parties to "try" the case on papers alone.
Unfortunately, despite the willingness of all the Intervenors to do so, it was not possible to reach an agree-ment among the parties without jeopardizing the two Seabrook appeals of the Seacoast Anti-Pollution League /Audubon Society of New IIampshire (SAPL/Audubon) before the First Circuit Court of' Appeals.
In one of these matters the application of the sunk costs principle is at issue.
A change in the earlier ruling of the Court, which could result from the case, may well alter the relevant inquiry of the Appeal Board by changing the applicable legal standard. It is possible that the Court will direct the comparison of Seabrook to alternative sites to be made without assuming a benefit for sunk costs.
This is, of course, entirely speculative at this time, although a decision on the case, which was argued in October, 1979 may be forthcoming soon.
After seven years of fighting the reality of Seabrook, NECNP has few resources to take up the battle over what might be, particularly when the need to forge ahead with a hearing on the Staff's alternative site analysis is so debatable given the Court's scheduling of the SAPL/Audubon cases.
The difficulty is that in the absence of an agreement among the parties which recognizes that, given the currently applicable legal assumptions governing the comparison of Seabrook to alternative sites, there is no justification for abandoning Seabrook for another site, N'?CNP is left with the choice of participating in a hearing or a hypothetical or withdrawing completely from this aspect of the case and risking the loss of the right to pursua possible significant f
legal issues in the future.
Neither of these choice is i
satisfactory.
NECNP therefore requests the Appeal Eoard to permit it to prepare findings of fact and conclusions of law on the 9
i Staff testimony and the record of the hearings as developed by SAPL/Audubon, the Staff and the Applicant.
The Coalition is prepared to forego the opportunity to participate in the hearing, to present evidence and cross examine.
NECNP will take the record as it finds it, and will argue that the Staff erred in defining and applying the obviously saperior standard, that sunk economic costs are inplicit in the analysis of Seabrook and its comparison to alternative sites and cannot be separated from it, and that the Staff methodology could not lead to a conclusion that a site was, in fact, obviously superior to Seabrook, even if this were so.
Should the Appeal Board deny this request Counsel for the Coalition must consult with the organizationt Board of Trustees before advising the Board of what course of action the coalition will take in the alternative.
Counsel has not yet been authorized to inform the Appeal Board that NECNP will or will not withdraw from this part of the Seabrook proceedings.
Respectfully submitted, fwI? bU~
Karin P.
Sheldon Sheldon, Harmon, Roisnan & Weiss 1025 15th Street, N.U.
Suite 500 Washington, D.C.
20005 (202) 833-9070 Counsel for NEC'i?
DATED:
December 21, 1978
UN'TED STATES OF AMERICA
~
NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket t.os. 50-443
~et al.
)
50-444 NEW HAMPSHIRE,
)
I (Seabrook Station, Units 1
)
l and 2)
)
)
l
)
CERTIFICATE OF SERVICE I hereby certify that copies of the "NECNP Motion to be Excused From Evidentiary Hearings" were mailed first-class postage pre-paid, this 21st day of December 1978 to the follcwing parties:
- Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Richard T.
Kennedy, Commissioner U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Peter Bradford, Commissioner U.S.
Nuclear Regulatory Commission
'daching ton,
D.C.
20353
- Stephen F.
Eilperin, Esq.
Stephen S.
Ostrach, Esq.
Office of the General Counsel U.S.
Nuclt ar Regulatory Commission Washington, D.C.
20555 Alan S.
Rosanthal, Chairman Atomic Safc'_j and Licensing Appeal Board U.S.
Nuclear nagulatory Commission Washington, D.C.
20555
- Not served Dr. John H., Buck Atomic Safety and Licensing Appeal Board U.S.
Nuclear Regulatory Commission W a s h i n.j t o n,
D.C.
20555 Michael C.
Farrar, Esq.
Atomic Fafety and Licensing Appeal Doerd U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Ivan W.
Smith, Esq., Chairman Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Ernest O.
Salo Professor of Fisheries Research Institute College of Fisheries University of Washington Seattle, Washington 98195 Dr. Marvin M.
Mann Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Marcia Mulkey, Esquire Robert A.
Backus, Esq.
Office of the Executive O'Neill Backus Spielman Littla Legal Director 116 Lowell Street
.U.S.
Nuclear Regulatory Commission Manchester, New Hampshire 03101 Washington, D.C.
20555 Norman C.
Ross, Esq.
Laurie Burt, Esq.
30 Francis Street Assis tant Attorney General Brookline, Massachusetts 02146 One Ashburton Place Boston, Massachusetts 02108 Thomas G.
- Dignan, Jr.,
Esq.
Ropes & Gray E.
Tupper Kinder 225 Franklin Street Assistant Attorney General Boston, Massachusetts 02110 Environmental Protection Division 0 fice of the Attorney C7neral Ed.?in J.
Rai:3, Esquire State House Annex, Room 203 Lmerence Dren.wr, Esquire Concord, New Hampshire 03301 Office of the Executive Legal Director Docheting and Service Section U.S.
Nuclear Regulatory Cer~;nsL":
U.S.
Nuclear Pegulatory Con.lasion Washington, D.C.
20555 Washington, D.C.
20555
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