ML20006C477

Applicant Motion to Dismiss Abandoned Remand Issues.* Seacoast Anti-Pollution League Continues to Display Contempt for Board Orders & Should Be Required to Face Consequences.Certificate of Svc Encl

ML20006C477
Person / Time
Site:	Seabrook
Issue date:	01/26/1990
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#190-9768 ALAB-924, OL, NUDOCS 9002080090
Download: ML20006C477 (10)

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-[I January 26,Dggg{0 UNITED STATES OF AMERICA 10 Jyl 30 PS:27 NUCLEAR REGULATORY COMMISSION OrrtCE EF SECRETARY before the iUURid)G ? WVif1

2N>i ATOMIC SAFETY AND LICENSING BOARD _

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL

) Off-site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues

)

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l APPLICANT 88 MOTION TO DISMISS ABANDONED REMAND ISSUES .

1 Applicants hereby move that the Board dismiss, as j abandoned, those portions of SAPL's NHRERP Contentions 15, 18, 25 which were remanded to the Licensing Board by the Appeal Board in ALAB-924. In support of their motion, Applicants state the following:

1. In ALAB-924, the Appeal Board remanded for further consideration by the Licensing Board, inter alia, issues .

1 concerning. j a) the consistency of the Licensing Board's finding.that '

t LOAs are not required for New Hampshire school. teachers i i

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• .who may accompany children- on evacuation buses,' which l 1

issue arose and was litigated under SAPL Contention 15;2  ;

b) such material issues of fact'concerning the adequacy i of the March 1986 NHCDA special needs survey as survived Applicants' previous motion for partial summary disposition of SAPL Contentions 18 and 25;3 and c) whether loading time for ALS patients in the two New Hampshire EPZ hospitals (the only special facilit;ies containing ALS patients, TI. 4295) has been included in the ETEs,' which issue was raised and litigated under l

SAPL Contention 25.5 ,

l 2. Each of these three issues, as noted.above, arose and was litigated under a contention proffered by the Seacoast Anti-Pollution League ("SAPL"). Moreover, the survey and ALS issues (b and c above) were litigated and appealed solely by SAPL.

l .3. On January 11, 1990, this Board. issued an order inviting L

the parties to offer their suggestions as to a procedure 1

Public Service ComDany of New Hamnshire (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC , slip. op. at 11 (Nov. 7, 1989) (hereinafter "ALAB-924" and cited to slip. op.].

2 M. at 8.

3 M. at 19.

M. at 26-27.

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Seacoast Anti-Pollution Leacue's Brief on ADDeal of the Partial Initial Decision on the NHRERP LBP-88-32 at 35, 41-42

(' March 21, 1989); 31g also ALAB-924 at 24.

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I E b for resolving, to the extent necessary, these three l issues and the one other remanded by ALAB-924. In i

t response to that order, counsel for SAPL on January 19 l sent to the Licensing Board a letter, a copy of which is

-attached heroto as Exhibit 1. In this letter, SAPL point i blank refuses to participate in any further proceedings ,

I as to the remanded issues:

" Surely the members of this Board could not f expect SAPL to have the least interest whatsoever in any further proceedings before.the Board, given the fact that the Board has decided the issue in the

! case by directing the 'immediate authorization' for a full power nuclear license.  !

L 1

"Perhaps the Board has forgotten that SAPL l intervened in this proceeding to oppose the issuance of a nuclear license for Seabrook. It did not intervene in this proceeding for the sake of being in the proceeding, and it has no intention of serving as an uncompensated emergency planner for FEMA, NRC or the New Hampshire Emergency Management Agency."6 l 4. Thus SAPL, the sponsor and'(except for the LOA issue) sole advocate of these three issues, has abandoned them.7 SAPL's position on the remanded issues, that it'will'not participate in order to enhance emergency plans but only if it can block license issuance, is consistent with its prior conduct in these-proceedings. Egg,-gig., SAPL Answer to Aeolicants' Motion'to Comoel and Motion for Protective Order (Dec. 19, 1988).

7 In a footnote, SAPL states that "if it comes to pass that these new proceedings involve licensing, SAPL'will again be a participant." It is far from clear what SAPL meant by this '

passage; however SAPL may have been trying to say that if the procedural posture of the case were. altered and these issues were again potential license blockers, SAPL would then reenter the litigation. Although it is not necessary to resolution of this motion given SAPL's unambiguous present withdrawal, Applicants note that SAPL is simply wrong in asserting that it may abandon-

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" They accordingly should be-deemed withdrawn, and the ,

contentions underlying them dismissed.s

5. Moreover, even if SAPL were now to argue that it did not intend to withdraw its contentions,.the issues should nonetheless be dismissed as a sanction for SAPL's contumacious response'to the Board's order. 10 C.F.R. S ,

2.707; gag also id. 5 2.713(c). More than a decade ago in these proceedings, when counsel for SAPL engaged in-similar misconduct, the Appeal Board admonished him that:

"We expect, however, that in future SAPL/Audubon will not take it upon themselves to make unilateral decisionsregardingtheneedtofulfiglobligations imposed by directives of this Board."

The Appeal Board's expectations have not been realized.

Rather, SAPL continues to display its contempt for the orders and resurrect issues at will. Egg, gig., Consumers Power Co.

(Midland Plant, Units 1 and 2) , ALAB-691, 16 NRC 897, 907 (1982);

Northern States Power Co., (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288,'2 NRC 390, 393 (1975); Boston L Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP '

3 NRC 156 (1976).

7, s

Nor may any of the other Intervenors-pick up these issues, given that they deliberately left prosecution of them to SAPL and thus ran the risk that SAPL would withdraw. Houston Lichtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 382-83 (1985); 333 also , Texas Utilities Electric C22 (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-l 88-12, 28 NRC 6051(1988); Ruke Power Co. (Cherokee Nuclear Station, Units 1, 2 and-3),_ALAB-440, 6 NRC 642 (1977);- comDare Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-22, 24 NRC 103 (1986).

Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2) ALAB-488, 8 NRC 187, 191 (1978).

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i of this Board,=and should now finally be required to face the consequences.

! i By their attorneys,

/ h R:W 4 Thomas G. Dignan, Jr.

l George H. Lewald Jeffrey P. . Trout i Jay Bradford Smith- r Geoffrey C. Cook William L. Parker Ropes & Gray one International Place Boston, MA 02110-2624 (617) 951-7000 1.

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,F 90 JE 30 P5:27 CERTIFICATE OF SERVICE I, Jeffrey P. Trout, one of the attorneys for h h h h a herein, hereby certify that on January 26, 1990, I madeisdFVice '

of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by l depositing in the United States mail, first class postage paid, addressed to):

Administrative Judge Ivan W. Smith Adjudicatory File Chairman, Atomic Safety and Atomic Safety and Licensing i Licensing Board Board Panel Docket (2 copies)

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 Administrative Judge Richard F. Cole Robert R. Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing l U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory 4350 East West Highway Commission  !

Bethesda, MD 20814 East West Towers Building 4350 East West Highway Bethesda, MD 20814  ;

Administrative Judge Kenneth A. Mitzi A. Young, Esquire McCollom Edwin J. Reis, Esquire 1107 West Knapp Street Office of the General Counsel Stillwater, OK 74075 U.S.' Nuclear Regulatory

Commission i One White Flint North, 15th Fl. i 11555 Rockville Pike Rockville, MD 20852 George Dana Bisbee, Esquire Diane Curran, Esquire Associate Attorney General Andrea C. Ferster, Esquire

' Office of the Attorney General Harmon, Curran & Tousley 25 Capitol Street Suite 430 l Concord, NH 03301-6397 2001 S Street, N.W.  :

Washington, DC 20009 ,

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• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P. O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555 4

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s Philip Ahrens, Esquire Mr. J. P. Nadeau

/ Assistant Attorney General Selectman's Office Department of the Attorney 10 Central Road

( General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O. Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fl.

Boston, MA 02108 Chairman Mr. Calvin A. Canney Board of Selectmen City Manager 95 Amesbury Road City Hal)

Kensington, NH 03833 126 Daniel Street I

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 H. Joseph Flynn, Esquire Judith H. Mizner, Esquire Office of General Counsel 79 State Street, 2nd Floor Federal Emergency Management Newburyport, MA 01950 Agency 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Ashod N.-Amirian, Esquire Holmes & Ells 145 South Main Street 47 Winnacunnet Road P.O. Box 38 Hampton, NH 03842 Bradford, MA 01835 l

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F Mr. Richard R. Donovan Mr.-Jack Dolan Federal Emergency Management Federal Emergency Management Agency Agency - Region I Federal Regional Center J.W. McCormack Post Office &

130 228th Street, S.W. Courthouse Building, Room 442 Bothell, Washington. 98021-9796 Boston, MA 02109 George Iverson, Director N.H. Office of Emergency Management State House Office Park South

• 107 Pleasant Street Concord, NH 03301

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Exhibit 1 B AC KUS. M EYER G SOLOMON AttoRNtys At uw i ROBERT A.DACKUs its Lowtu. STmtcT TE LE COPIE R son Mtytn' P. o. Box Ble '

,,o3,,...o,3o stevtN A SOLOMON M ANC H ESTER. N. H. ostos MICHAEL t. IPAvtc ,,t o ,omy,go too3s 666 7273 To MAstACMusttTs saR B J. BRANCH January 19, 1990 I

' Administrative Judges Ivan W. Smith, Chairman l

Dr. Richard F. Cole Dr. Kenneth A. McCollom US NRC Washington, DC 20555 Re: In the Matter of Public Service Company of New Hampshire, et al.

(Seabrook Station, Unit 1)

Docket No. 50-443-OL

Dear Administrative Judges:

Three days ago I received the Board's Memorandum and Order of January 11, 1990, the purpose of which was "to provide to ,

interested parties an opportunity to advise the Board on how to proceed-in accordance with the directives of ALAB-924 and'how they proposed issues."

to participate in the resolution'of the remanded My first reaction was that this Order must be in jest.- Surely, the members of this Board could not expect-SAPL to have the least interest whatsoever in any further proceedings before the Board, '

given the fact that the Board has decided the issue in the case by directing license. the "immediate authorization" for a full power nuclear Perhaps the Board has forgotten that SAPL intervened in this proceeding to oppose the issuance of a nuclear license for Seabrook. It did not~ intervene in this proceeding for the sake of being in the proceeding, and it has no intention of-serving as an-uncompensated emergency planner for FEMA, NRC, or the New

.Bampshire Emergency Management Agency.

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Administrative Judges Ivan W. Smith, Chairman '

Dr. Richard F. Cole "

Dr. Kenneth A. McCollom Page 2 January 19, 1990 R

I In case the Board has forgotten SAPL's position in this matter, we enclose a copy of SAPL's Opening Stater.4ent. SAPL's position remains what it hps been, there is no " adequate" emergency plan for SeabrookA, adequate emergency planning at Seabrook may indeed issued. not be feasible, and therefore no nuclear license should be t

u Respectfully submitted, Seacoast Anti-Pollution League By-its Attorney, a

Robert A. Backus fff/

RAB jsr Enclosure .

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" l If it comes to pass that these new proceedings involve-licensing, SAPL will again be a participant.

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