ML20011F071
| ML20011F071 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/20/1990 |
| From: | Lisa Clark NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-9935 OL, NUDOCS 9003010020 | |
| Download: ML20011F071 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION lil0. FEB 21 P4:13 l
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD fjg{[3pyG y;prg r
hhANCH In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, el al.
Off-site Emergency Planning I,
(Seabrook Station. Units 1 and 2) i l
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NRC STAFF RESPONSE TO MASS AG'S MOTION TO REOPEN THE RECORD i
l Lisa B. Clark Counsel for NRC Staff
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February 20, 1990 1
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e o-o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.
Off-site Emergency Planning (SeabrookStation, Units 1and2) 3 NRC STAFF RESPONSE TO MASS AG'S MOTION TO REOPEN THE RECORD Lisa B. Clark Counsel for NRC Staff February 20, 1990 e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i
In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
NRC STAFF RESPONSE TO MASS AG'S MOTION TO REOPEN THE RECORD INTRODUCTION On February 1, 1990, the Massachusetts Attorney General (" Mass AG")
filed a motion to reopen the record in the portion of the Seabrook proceeding dealing with the adequacy of the alert and notification system.1/ The motion was precipitated by the same occurrence as the request to reopen the record which was denied by the Licensing Board with jurisdiction over the SPMC (hereafter the " Smith Board")--the revocation of the letter of agreement with WCCM (AM)/WCGY (FM). The NRC Staff opposes Mass AG's motion.
DISCUSSION I.
The Mass AG's Motion Does Not Satisfy the Requirements for Reopening the Record.
The criteria established by the Comission impose a heavy berden on movants attempting to reopen a closed record. Long Island Lighting JJ Mass AG's Motion to Reopen the Record, February 1, 1990 (Motion to Reopen).
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Company (Shoreham Nucle 6r Power Station, Unit 1) CLI-88-3, 28 NRC 1, 3 (1988).
In order to prevail, the movant must demonstrate that the motion is timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely, that a significant safety or environmental issue is involved and that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.
10 C.F.R. 5 2.734(a).
The motion of the Mass AG fails to meet any of the requisite criteria.
A.
The Mass AG's Motion is Not Timely.
Mass AG's motion should be rejected as untimely because it is premised upon information which has been available to the Intervenors for over a year and a half. Metropolitan Edison Co. (Three Mile Island Nuclear Station Unit 1) ALAB-815, 22 NRC 198, 201 (1985).
As has been previously 1
established in this proceedino, Intervenors have been on notice since at least June 1988 that the SPMC did not contemplate the use of WCGY in order to meet the NRC's notification requirements, but only as a backup to WLYT.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
LBP-90-1, 31 NRC (January 8,1990), slip op, at 10-14. 2/
2/
In their pleadings, Applicants brought out the fact that Intervenors were provided with the FEMA-REP-10 report in Jun? 1988 which specifically states that in Massachusetts the contract EBS radio station is WLYT. Applicants Answer to Intervenors' Motion to Admit a Late-Filed Contention and Reopen the Record Based Upo 1 the Withdrawal of.the Massachusetts E.B.S. Netwcrk and WCGY, November 15,1989 at 3-4.
In response Intervenors did not deny receipt of this document but merely claimed that it was mischaracterized as being provided in the " spring".
Intervenors' Motion to Add an Additional Basis to the Late Filed Attached Contention to the Motion of November 9, 1989, November 22, 1989 at 4. footnote 2.
Thus, it was undisputed that Intervenors had had the information underlying their contention regarding the EBS long before they filed even their first motion to reopen the record.
Moreover, Mass AG has shown no good cause for failing to file this motion upon lestning of the revocation of the letter of agreement with
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WCGY in October 1989. While he claims that he did not file this motion earlier because it would be argued that he was inviting inconsistent findings by asking two separate panels to consider the same issues, Motion to Reopen at 7 he is now asking for just that. Not only is he asking that the Appeal Board consider de novo a motion which has already been decided by the Smith Board, he attempts to justify his delay in filing by stating that he wanted to wait and see whether the Smith Board denied the earlier motions. Ld.at7-8.
In other words, he delayed because he planned to file this motion only if necessary to obtain a favorable ruling contrary to that of the Smith Board. This sort of litigation tactic hardly constitutes good cause #or filing late.
Because this motion is untimely, it may only be granted if the Mass AG has demonstrated that an exceptionally grave issue, rather than just a significant safety issue, has been raised.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-886, 27 NRC 74, 76, 78 (1988). As discussed below, the Staff takes the position that the Mass AG has not raised even a significant safety question. However, should this Appeal Board rule otherwise the Staff submits that the issue is by no means exceptionally grave, as public notification will be given through the Massachusetts emergency broadcast system and WLYT.
B.
The Mass AG Has Not Raised a Significant Safety Issue.
The Mass AG argues that his motion raises a significant safety issue for four reasons: (1) Without the participation of WCGY there is no hardware in place to assure activation of the EBS within fifteen minutes, d
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(2) even if the statewide EBS is activated there is no assurance that notification would reach the population of the EPZ within 15 minutes, (3) when only one station is carrying the EBS message there is no mechanism to ensure that a listener can locate a.1 EBS station promptly, and (4) only a small number of people will hear the emergency message when they turn on l
t their radio if the message is only broadcast on WLYT.
When considered in the context of the existing state EBS, it is obvious that the Mass AG has failed to raise issues of any significance.
As the Smith Board determined, the Massachusetts EBS network provides the means of promptly notifying the public of an emergency. El Once the lead station, WROR, is activated, the EBS message can be picked up and retransmitted by every EBS station in the state within approximately eight minutes 4/ Activation of the state network in the event of a radiological emergency would be by request of state officials exercising their "best efforts" to protect the public. Long Island Lighting Co.
(Shoreham Nuclear Power Station Unit 1), CLI-86-13, 24 NRC 22 (1986) 5I 3/
LBP-90-1, at 19-29; see NRC Staff Response to Intervenors' Motion to Admit a late Filed Contention and Reopen the Record on the SPMC Based
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Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY, November 20, 1989; NRC Staff Response to Intervenors' Motion to Add an Additional Basis to the late Filed Attached Contention to the Motion of November 9, 1989, December 6, 1989.
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Massachusetts Emergency Broadcast System Operational Plan at 2,
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submitted as Exhibit I to Motion to Reopen.
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The memorandum of Royce N. Sawyer, dated November 6,1989, (part of 5
Exhibit A of Applicants' Desponse to the instant motion), plainly states that "Furthermore, Massachusetts Civil Defense, if notified by New Hampshire Yankee of an incident affecting the public safety, could activate the Emergency Broadcast System from this agency's headquarters."
As held in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),ALAB-911,29NRC247,254-55(1989), when a State emergency broadcast system can be activated to provide public information, the existence of letters of agreement with any particular station is irrelevant. Under the realism doctrine, it cannot be maintained that a State would not be willing to activate that system if needed in an emergency when a State EBS has been established.
Id.
Since the EBS network can be activated by contacting WROR, the lack of any direct communication link to WCGY is irrelevant. Furthermore, since the state network is designed to broadcast information over all participating stations Intervenors' arguments (3) and (4) are simply inapplicable. As documented by the Intervenors, activation of the lead station will trigger all participating stations in the EBS, resulting in coverage of the entire state. As for the Mass AG's claim that there is no assurance that notification would occur within 15 minutes even if the state network were activated, this is a matter completely unrelated to the nonparticipationofWCGYandnotproperlyapartofthismotion.5/ To the extent the Mass AG wished to 1itigate the adequacy of the state EBS, he had ample opportunity to do so during the lengthy proceedings which have already been conducted.
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Further, as we have stated, the Massachusetts Civil Defense Operations Plan governing the EBS provides that notification may be given within eight minutes.
Exhibit I to Motion to Reopen.
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D.
C.
The Mass AG Has Not Established that a Materially Different Result Would Have Been Likely As discussed above, Massachusetts has an EBS network in place with the capability of disseminating information throughout the entire state within approximately eight minutes. Because the Mass AG has presented no evidence or even any reason to believe that the EBS would not be utilized by state officials exercising their best efforts to protect the public, he has wholly failed to, establish that a materially different result would have been likely had the Licensing Board considered the revocation of the letter of agreement with WCGY.
Regardless of whether any such agreement exists, activation of the entire network could occur through WROR in the event of a radiological emergency.
II. The Mass AG Does Not Prevail on the Standards for Late Filed Contentions.
The Mass AG has also failed to demonstrate that a balancing of the five factors set forth in 10 C.F.R. 6 2.714fa)(1) weigh in favor of admission of their late filed contention. Those factors are:
(1) good cause, if any, for failure to file on time; (ii) the availability of other means by which the petitioner's interest will be protected; (iii) the extent to which petitioner's participation may
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reasonably be expected to assist in developing a sound record; (iv)theextenttowhichpetitioner'sparticipationwillbe represented by other oarties; and (v) the extent to which the petitioner's participation will
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broaden the issues or delay the proceeding.
As discussed above, the Mass AG's filing is not timely. Hence, factor one weighs against admission of the contention.
Factor two also
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weighs against admission since the Mass AG is availing himself of another means of protecting his interests by appealing LBP-90-1.
Factor three, whether the Mass AG can contribute to the development of a sound record, further weighs against admission of the contention.
In the motions filed before the Smith Board, the Mass AG along with other Intervenors designated Robert Boulay and A. Anthony Delsey as their expert witnesses. U The assertions contained in the affidavits of those individuals, however, do not in any way cast doubt on the capability of the existing EBS to provide timely information to the public in the event of a radiological emergency.
Indeed, if anything they tend to substantiate the adequacy of that system by establishing that it would activate all participating stations while triggering non-participating stations to go off the air and that simultaneous transmission over the Merrimac Valley operational area would reach a large number of people.
Because the Mass AG participated in filing the motion to reopen before the Smith Board and the appeal of that Boards decision his interests have and will be fully represented. Thus, factor four also weighs against admission. Finally, there is no question that admission of the proposed contention would broaden the issues and delay the resolution of this operating license proceeding.
In sum, all five of the late filing criteria weigh against admission.
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Intervenors' Motion To Admit a late Filed Contention and Reopen the
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Record on the SPMC Based Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY, November 9, 1989, Attachment D; Intervenors' Motion to Add an Additional Basis To the late Filed Attached 1
Contention to the Motion of November 9,1989, November 22, 1989, Attachment E.
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III. The Mass AG's Motion Should Be Barred as Res Judicata.
While m judicata is not fully applicable in administrative proceedings, the Commission has found the underlying considerations of fairness to the parties and conservation of resources relevant.
Public Service Company of New Hampshire (Seabrook Station Units 1 and 2),
CLI-78-1,7NRC1,27(1978). When the principles of res judicata are considered in this instance, it is clear that the Mass AG's motion should be rejected. The Smith Board in this very proceeding has rendered a final, valid determination on the merits of the same parties' previous motions to reopen the record to admit a contention regarding the same issues.
LBP-90-1, 31 NRC (January 8, 1990). While Intervenors are entitled to appellate review of that decision, they cannot avoid res judicata and obtain de novo consideration by this Board.
Through this motion, the Mass AG is seeking admission of the very same contention which was filed before the Smith Board on the basis of the same affidavits. Along with the other Intervenors, the Mass AG fully aired his arguments for admission which were rejected in LBP-90-1.
Under the circumstances, the considerations of fairness and conservation of resources dictate that this renewed motion be rejected.
In this already protracted proceeding the Mass AG's attempt to initiate repetitive and needless litigation need not be tolerated.
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CONCLUSION For the reasons stated above, Mass AC's motion to reopen the record should be denied.
Respectfully submitted.
Ub Lisa B. Clark Counsel for NRC Staff Dated at Rockville. Maryland this 20th day of February. 1990 9
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e DOLKE1ED USHRC i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% FEB 21 P4 ;g3 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD,c U ttCRE1ARY
'00CKll'NG A Sli'VICI' In the Matter of bittmCH Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, el 1.
Off-site Emergency Planning 1
(Seabrook Station, Units 1 and 2) i; CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MASS AG'S MOTION TO REOPEN THE RECORD" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system, as indicated by double asterisks, by express mail, this 20th day of February 1990:
IvanW. Smith, Chairman (2)*
Peter Brann Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission State House Station 6 Washington, DC 20555 Augusta. ME 04333 Richard F. Cole
- John Traficonte. Esq.**
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Comission One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 02108 L
Kenneth A. McCollom**
Geoffrey Huntington, Esq **
I Administrative Judge Assistant Attorney General 1
1107 West Knapp Street Office of the Attorney General l
Stillwater OK 74075 25 Capitol Street i
l Concord, NH 03301 l
Thomas G. Dignan, Jr., Esq.**
Robert K. Gad, III, Esq.
Diane Curran. Esq.**
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' Ropes & Gray Harmon, Curran & Tousley One International Place 2001 S Street, NW Boston, MA 02110-2624 Suite 430 Washington, DC 20009 Robert A. Backus Esq **
Backus, Meyer & Solomon Jack Dolan 116 Lowell Street Federal Emergency Management Agency l
Manchester, NH 03106 Region I J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 l
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- l H. J. Flynn, Esq.
Judith H. Mirner Esq.
Assistant General Counsel 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Robert Carrigg, Chairman Board of Selectmen Paul McEachern Esq.**
Town Office Shaines & McEachern Atlantic Avenue i
25 Maplewood Avenue North Hampton, NH 03862 P.O. Box 360 Portsmouth, NH 03801 Mrs. Anne E. Goodman, Chairman Board of Selectmen George Hahn, Esq.
13-15 Newmarket Road Attorney for the Examiner Durham, NH 03824 Hahn & Hesson 350 5th Ave, Suite 3700 Hon. Gordon J. Humphrey New York, NY 10118 United States Senate 531 Hart Senate Office Building R. Scott Hill-Whilton, Esq.
Washington, DC 20510 Lagoulis, Hill-Whilton
& McGurie Richard R. Donovan 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 Federal Regional Center 130 228th Street, S.W.
Allen Lampert Bothell, Washington 98021-9796 Civil Defense Director Town of Brentwood Peter J. Matthews, Mayor 20 Franklin City Hall Exeter, NH 03833 Newburyport, MA 01950 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter, NH 03833 South Hampton, NH 03827 10 Front Street Exeter, NH 03833 Ashod N. Amirian, Esq.
Town Counsel for Merrimac Gary W. Holmes, Esq.
145 South Main Street Holmes & Ellis P.O. Box 38 i
47 Winnacunnet Road Bradford, MA 01835 Hampton, NH 03842 Barbara J. Saint Andre Esq.
L Kopelman and Paige, P.C.
77 Frankin Street Boston, MA 02110 l
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Ms. Suzanne Breiseth George Iverson, Director Board of Selectmen NH Office of Emergency Management l
Town of Hampton Falls State House Office Park South Drinkwater Road 107 Pleasant Street Hampton Falls, NH 03844 Concord, NH 03301 i
Atomic Safety and Licensing Robert R. Pierce, Esq.*
Board Panel (1)*
Atomic Safety and Licensing U.S. Nuclear Regulatory Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Office of the Secretary (2)*
U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Washington, DC 20555 Appeal Panel (6)*
Attn:
Docketing and Service Section U.S. Nuclear Regulatory Comission Washington, DC 20555 14 N Lisa B. Clark Counsel for NRC Staff 4
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