ML20003C523

Request for Permission to Reply to Applicant 810227 Reply to New England Coalition on Nuclear Pollution 810224 Motion for Directed Certification.Alternatively Requests Referral of Motion to Aslab.Certificate of Svc Encl

ML20003C523
Person / Time
Site:	Seabrook
Issue date:	03/04/1981
From:	Jordan W, Weiss E HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC COMMISSION (OCM)
References
NUDOCS 8103060349
Download: ML20003C523 (10)

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UNITED STATES OF AMERICA Ch USS 4 Jgg y 3 It::tt:r; gQ' NUCLEAR REGULATORY COMMISSION ,A C"

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BEFORE THE COMMISSION W , i,ff#'D Q N j

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 NEW HAMPSHIRE, - et_al. ) 50-444 (Seabrook Station, Units 1 and-2) )

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REQUEST FOR PERMISSION TO REPLY AND REPLY TO APPLICANT'S ANSWER CONCERNING DIRECTED CERTIFICATION On February .24, 1981, the New England Coalition on Nuclear Pollution (NECNP) filed a motion for directed cer-tification, to which the Applicant responded on February 27, 1981. Pursuant to 10 CFR 2.730(d), NECNP requests permis-sion to reply to the Applicant's answer and asks that directed certification be granted, or that the Commission review this matter sua sponte. In the alternative, NECNP requests that the Commission refer its motion for directed certification to the Appeal Board for treatment as a request for reconsideration or for certification.

The Applicant argues that the requested Commission review is precluded by 10 CFR 2.786 (b) (9) , which states, Except as provided in this section and '

Section 2.788, no petition or other request for Commission review of a deci-sion or action of an T.tomic Safety and 1 Licensing Appeal Boarc will be entertained.

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The Applicant also suggests that -review is not proper in this instance because the decision complained of involved a matter of discovery. More importantly, the Applicant gratu-itously mischaracterizes the purpose of this hearing as "to see if he [Dr. Chinnery] can (on a third try) make his .

case." If that characterization and the Appeal Board's ruling are allowed to stand, this proceeding will become a mockery of the administrative process.

Thus far, the Appeal Board and the Applicant have com-pletely ignored the genesis of this remand and the burden of proo'i that the Applicant is requued to meet. These issues are not before the Appeal Board on remand because Dr.

Chinnery's hypothesis has been proven to be wrong. To the contrary, Dr. Chinnery has made his case so effectively that he has convinced the Commission to reject the Appeal Board's factual findings, a rarity at best. Since there is now no decision by the Commission or bv a lower tribunal accepting the Applicant's position on seismic issues, the burden of proof remains squarely on the Applicant to prove its case, not on the Intervenors, who have prevailed tt date. Union Electric Co. (Callaway Plant, Units 1 and 2), ALAB-348,

,NRCI-76/9, p. 225, 231 (1976).

The status of this case and the burden of proof seem to have~been lost on the Appeal Board. Somehow it has becciae i

NECNP's barden to prove its case up to some implicit yet totally undefined threshhold of validity, after which the Appeal Board may see fit to have a further hearing to weigh 1

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. Dr. Chinnery's methodology against that of the Staff and the Applicant.~1/ The prospect is mind-bogging, preju'dicial to NECNP and totally unnecessary. NECNP's reasonable and unassailably logical argument that Dr. Chinnery's approach cannot be viewed in a vacuum, but must be considered in light of the strengths and weaknesses of other approaches, i

has been transmogrified into an attempt to broaden the scope of this proceeding.

The very thought that two fa :her hearings might be

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necessary to resolve these iau.os is beyond comprehension. 4 The hearings in this case have already lasted nearly a decade. Testimony on seismic issues was taken in the summer of 1975, and the Licensing Board decision was in 1976.

Construction permits were issued in July of 1976, and con-struction has been under way for nearly five years. For the Appeal Board to suggest now that it should adopt a view of the Commission's remand that it admits could result in an additional hearing is to suggest that there is no real need to resolve these questions in a timely manner, or even to resolve them before construction is completed and the operating license applied for. More importantly, for the 1/ "Should it subsequently become necessary or desirable to weigh the relative merits of two or more acceptable approaches, there will be then time enough for the Coalition to seek such information as it might deem relevant to the weighing process." Public Service Co.

ot New Hampshire (Seabrook Station, Units 1 and 2),

Docket Nor,. 50-443, 50-444 (filed February 12, 1981),

, at n. 10, p. 8.

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P Appeal Board to narrow the scope of this proceeding to a point that ignores the state of the art of seismology is to ignore not only the Commission's dictates, but also the need to arrive at the truth. The Appeal Board's approach is designed to minimize information for procedural convenience, rather than to examine the real seismic issues affecting  ;

the Seabrook site. The same approach in 1977 resulted in this remand, and it invites reversal once again if it is t

allowed to stand.  ;

The Applicant suggests that Commission review at this i

point is precluded by 10 CFR 2.786 (b) (9) . Unquestionably, the Commission will not ordinarily entertain requests for f directed certification or other review outside of the normal  ;

channels. For that reason, NECNP carefully considered t

whether to make such a request in this case. We concluded ,

that direct Commission intervention is essential to assure that the Appeal Board follows the dictates of the Commis-sion's remand order. The previous discussion fully supports the need for such direction. NECNP considered making an initial request to the Appeal Board, but it seems clear from the Board's February 12 order that such a request would be [

futile.  :

The Commission has previously established the standard that requires review here, whether labeled as a response to 6 the motion for directed certification, or simply sua sponte Commission action to protect the. integrity of its procedures.

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In United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant) , CLI-76-13, NRCI-76/8,

p. 67, 75-76, (1976) the Commission st.ted, While 10 CFR 2.786(a) states the ordinary practice for review, it does not -- and could not -- interfere with our inherent supervisory authority over the conduct of adjudicatory proceedings before this Com-mission, including the authority to step in and rule on the admissibility of a contention before a Licensing Board.

No party has a vested.right to the continu-ing effectiveness of an erroneous Licensing Board ruling which happens to favor it. In the interest of orderly resolution of dis-putes, there is every reason why the Commis-sion should be empowered to step into a proceeding and provide guidance on important issues of law and policy. To be sure, de-lays and confusions which can be produced by

- interlocutory review argue, as the Appeal Board correctly recognized, for 'sgaring use of this authority. But here the decision of the Licensing Board itself threatened sub-stantial delay for the proceeding, delay which could not be captured by later correc-tion of error.

We face precisely that situation, with the Appeal Board's ruling threatening substantial delay. Since the Commission has already exercised its inherent supervisory authority in holding an unusual oral presentation before

, reaching its decision, it should do so again to assure that the presentation and the remand decision itself are not rendered meaningless.

In addition, Section 2.786 (b) (9) , on which the Appil-ca't relies, refers specifically to re'riew of decisions of "an Atomic Safety and Licensing Appeal Board." The Appeal

Board in this case is not truly a^cting in that role. Rather, it is acting as the trier of fact and first level tribunal, normally the function of the Licensing Board. Had the pro-ceeding been remanded to the Licensing Board, therefore, directed certification would have been available, so that at -

least one other forum would have been able to check the initial decision cnd turn the proceed!cg in the proper direction. Since that sort of review is essential to the smooth functioning of the Commission's licensing procedures, l and since it is not available here, Section 2.786 (b) (9) must be read to preclude a request for review except where the Appeal Board is acting as the lowest forum.

Further, as the Applicant was forced to admit, Commis-sion precedent indicates that Section 2.786 (b) (9) is not an ,

ironclad prohibition. In Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant Units 1 and 2) ALAB-592, 11 NRC 744, 754 (1980), the Appeal Board indicated that Commission certification could have been sought in a situa-tion involving a utility's attempt to protect the secrecy of

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its security plan. Certainly if such a request had been made, involving potentially serious safety and national

, security issues, it would have been irresponsible of the Commission to refuse it. Here the issue is not national security, but an issue the Commission has already seen once

! in a case that has the dubious distinction of surpassing previous records for reversal, remand and fragmentation. l The issue is simple, yet failure to resolve it here would

_7_ l lead to many more months and years of litigation on factual  :

matters that should have been settled before construction began. The prospect of an operating license application I appearing before basic seismic issues are resolved demands early Commission attention.

Finally, the Commission cannot ignore the enormous dis-t parity of resources between NECNP and the other parties to  ;

dae proceeding. NECNP is able to participate in this hearing only by going deeply into debt and has been forced -

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to forego certain activities, such as attendance at the l Staff's deposition of Dr. Trifunac in California, for lack of funds. The company and the staff will have no trouble t

trying this issue in two more stages. So long as construc-tion continues, they have no incentive for expedition. l I

Indeed, as construction continues towards accomplishing a L

fait accompli, it wculd appear that the incentive is in the [

other direction. By contrast, NECNP simply cannot afford to i

try this issue in artificial stages. If the aim of this strategy of protraction is to effectively end the inter- [

venor's participation, it will certainly succeed. If NECNE I is not given a fair opportunity to present its full case now, it will as a practical matter, be denied that opportu-nity forever. Dr. Chinnery cannot be expected to donate his time for yet another hearing, nor has NECNP any reasonable i

prospect of being able to fund the expenses of more litiga-tion. The Appeal Board's unsupportably narrow view of the

scope of this hearing works a vas~tly inequitable prejudice i

to NECNP without promising any countervailing benefit.

For these reasons, NECNP requests that the Commission direct certification of the Appeal Board's 3rder of February 12, 1981, c'r that it exercise its power of sua sponte l review, and reverse that decision. H o w r,v e r , if the Commis-sion decides not to order directed certification, NECNP asks that it refer NECNP's motion and the related findings to the

• Appeal Board to be addressed as a motion for reconsideration I and for Appeal Board certification to the Commission.

Respectfully submitted,

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Ellyn R. Weiss ,5,

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d[W ff,w' - r William S g & dan,-III Harmon &' Weiss 1725 I Street, N.W. ,

Suite 506 Washington, D.C. 20006 (202) 833-9070 Counsels for NECNP March 4, 1981 i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  ;

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD '

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443  :

NEW HAMPSHIRE, et al.

) 50-444 i

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(Seabrook Station, Units 1 ) f and 2) )

I h CERTIFICATE OF SERVICE I hereby certify that copies of the Request for Permis-sion to Reply and Reply to Applicant's Answer Concerning Directed Certification," have been hand-delivered and mailed i postage pre-paid on this 4th day of March, 1981, to the following:

Alan S. Rosenthal, Chairman

• Dr. John H. Buck Atomic Safety & Licensing Atomic Safety & Licensing ,

Appeal Board Appeal Board -

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission ;

Commission Washington, D.C. 20555 Washington, D.C. 20555 l

' Frank Wright, Esquire Assistant Attorney General t Assistant Attorney General Environmental Protection Division Environmental Protection Office of the Attorney General ,

Division State House Annex, Room 208 i Office of the Attorney General Concord, New Hampshire 03301  !

One Ashburten Place ,

Boston, Massachusetts 02108 *

• Thomas G. Dignan, Jr., Esquire i' Ropes a Gray Robert A. Backus, Esquire 225 Franklin Street I O'Neill, Ba;kus, Spielman, a Letle Boston, Massachusetts 02210  ;

116 Lowell Street Manchester, New Hampshire 03101

• Docketing and Service Section U.S. Nuclear Regulatory Commission .

+ Roy Lessy, Esquire Washington, D.C. 20555  !

Office of Executive Legal Director ,

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

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• Dr. W. Reed Johnson D. Pierre G. Cameron, Jr., Esq.

Atomic Safety & Licensing General Counsel Appeal Board Public Service Company of U.S. Nuclear Regulatory Commission New Hampshire Washington, D.C. 20555 1000 Elm Street Manchester, NH 03105 Ms. Elizabeth H. Weinhold 3 Godfrey Avenue Atomic Safety & Licensing Hampton, New Hampshire 03842 Board Panel U.S. Nuclear Regulatory Ccmmission -

Washington, D.C. 20555 l

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William -S d ordani III 1

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• / Hand-delivered.

• • / Express mail.

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