ML20012C708

Applicant Answer to Intervenors Motion to Reopen Record & Admit late-filed Contention Re Defective Rosemount Transmitters.* Motion Considered Untimely,Fails Criteria of 10CFR2.734 & Should Be Denied

ML20012C708
Person / Time
Site:	Seabrook
Issue date:	03/13/1990
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20012C709	List: ML20012C708 ML20012C712
References
CON-#190-10103, REF-PT21-90, RTR-REGGD-01.097, RTR-REGGD-1.097 OL, NUDOCS 9003230095
Download: ML20012C708 (7)

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• March 13, 1990 UNITED STATES OF AMERICA  % MAR 16 P2:33 NUCLEAR REGULATORY COMMISSION '

{rrlCE OF SECRET /SY before the  ; -J.; m n W W L

- M;cii ATOMIC SAFETY AND LICENSING APPEAL BOARD' In the Matter of PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE, at al. 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency ~

and 2) Planning Issues)

APPLICANT 88 ANSWER TO INTERVENORS' NOTION TO REOPEN THE RECORD AND RDNIT LATE-FILED i CONTENTION REGARDING DEFECTIVE ROSENOUNT TRAN8MITTERSI j j

INTRODUCTION L Under date of February 27, 1990, counsel for the New England.

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Coalition on Nuclear Pollution- (NECNP), acting for NECNP and p -Seacoast Anti-Pollution League and The' Attorney General of The. ,

Commonwealth of Massachusetts (hereafter all referred to i l

collectively as "Intervenors") brought a " Motion to Reopen the Record and Admit Late-filed Contention Regarding Defective

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'This Answer also constitutes Applicants Answer to "Intervenors' Supplemental Motion Addressing Appeal Board's-

. Jurisdiction.to Consider Motion to Reopen Record and Admit Late Filed Contention'Regarding Defective Rosemount Transmitters" to

~the extent any reply.is necessary by virtue of that document, which was really a brief, being entitled'a " motion."

ROSREORE.58 9003230095 900313 PDR ADOCK 05000443 G PDR;,

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Rosemount Transmitters" (the Motion). Upon receipt of the Motion, this Appeal Board issued an order directing the  !

Intervenors to file a supplemental memorandum addressing the issue of whether there is jurisdiction in this Appeal Board to ,

L f entertain the Motion.2 Intervenors filed such a pleading on I

" l March 7, 1990. I The gravamen of the Motion is a draft bulletin released R January 29, 1990, by the Staff confirming difficulties with'the l

so-called Rosemount transmitters and requirements for monitoring l

I and replacing these items in operating nuclear power plants.

This bulletin had been preceded some eight months earlier, on L

April 21,.1989, by an information notice announcing difficulties ,

with the Rosemount transmitters and calling upon all operating  ;

licensees to identify what model of Rosemount transmitters were installed'in their facilities, and, with respect to certain models, the manufacturing dates.3 Intervenors claim that as result of the issuance of-this bulletin, the. record in this proceeding should be. reopened to permit litigation of issues concerning the utilization of Rosemount transmitters at Seabrook Station.

2 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Appeal Board Order (unpublished) (Feb. 28, 1990).

3 NRC Information Notice No. 89-42 (April 21, 1989).

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36-ARGUMENT I. TEIS APPEAL BOARD IS WITIOUT JURISDICTION TO ENTERTAIN THE NOTION. l In its recent decision allowing the full power authorization for Seabrook to become effective, the Commission described the ,

status of the Seabrook litigation before the agency _as follows:

"All contested issues in the adjudicatory proceeding on the application for a full E power license-for Seabrook have now'been finally resolved by the Commission,-except for issues reaardina emeraency olannina.

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i This characterization of the status of the proceeding is, of course, binding upon the Appeal Board. And it means that-l finality insofar as the agency is concerned, has attached to all-1 issues regarding the licensing of Seabrook save those dealing with emergency planning. This being the case, the modern law' .1:s clear that absent a showing of a " nexus" between the "Rosemount Transmitter" issue and emergency planning matters, there is no

'Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-90-03, 31 NRC Slip Op. at 4 (March 1, 1990).

5 There is some comparatively ancient authority that holds that if a licensing board, as opposed to the Commission, divides aicase into radiological ,and environmental segments, the rendering of a partial initial decision on the radiological  :

segment and the Appeal Board's taking jurisdiction of the appeal Hof same, does not deprive the Licensing Board still conducting _  ;

-proceedings as to environmental issues of the power to reopen the radiological segment, gag Wisconsin Electric Power Comoany '

(Point Beach-Nuclear Plant, Unit 2), ALAB-86, 5 AEC 376 (1972).

The case at bar is, of course, distinguishable because the LCommission itself has attached finality to all portions of the

' case except emergency planning.

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-jurisdiction in any NRC adjudicatory tribunal to reopen the  :

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_ record to take up that subject.' The Intervenors concede there l l

is no such nexus;7 therefore their motion must fa'il.a i l

II. THE MOTION FAILS UNDER THE CRITERIA SET FORTH IN t> 10 C.F.R. 5 2.734 IN ANY RVEET. ]

1 A. The Motion is not Timely.

The~ Motion is not timely. As noted, earlier, there was an  !

NRC Information Notice issued with respect to the Rosemount Transmitter problem last April. This document was more than enough to put the intervenors on notice as to this matter had they wished to litigate it.' An inspection report with respect to the Rosemount Transmitters and Seabrook was released.on January 9, 1990, as Intervenors acknowledge." Finally, the actual. bulletin which they rely upon, was, by their own admission-released to the public on January 29,.1990. We are given no

'Lona Island Lichtina Co. (Shoreham Nuclear Power Station,

' Unit 1), ALAB-901, 28 NRC 302, 306-(1988); Vircinia Electric and Power Comoany (North Anna ~ Nuclear Power Station, Units-1 and 2),

9 NRC 704,_707-09 (1979); Public Service Comoany of New-Hamoshire (Seabrook Station, Units 1 and 2) , ALAB-513, 8 NRC 694, 695-96 (1978).

7 Motion at 3'.

" s Intervenors' argument from a brief filed on behalf of the

-Commission.in1the United States Court of Appeals for the District of Columbia Circuit ignores the fact that the Commission has now taken final action not only as to low power radiological safety issues but-also as to full power radiological safety issues, except for emergency planning.

'A copy of the information notice is attached as attachment 3 to the affidavit which accompanied the original motion.

" Motion at 4.

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v l explanation for why the Intervenors waited almost a full month i

before. filing tho' Motion. l l

B. The Motion Does not Raise a Significant Safety Issue. '

For the reasons set forth in the Affidavit of Bruce E.

Beuchel attached hereto and marked "A," the Motion simply does not raise a significant safety question with respect to Seabrook.

For this reason, there has also been no showing that had the material contained in the Motion been considered originally, a different result would have been forthcoming, o C. The Notion Does not Satisfy the Late-filed Contention Criteria.

The regulation governing reopening requires that in-the case of a. reopening which seeks to raise a contention not previously in controversy between the parties, the Movant must satisfy the '

provisions of the five factors" test of 10 CFR 5 2.714 (a) ." To the extent that the contention sought to be raised has not been

'previously in controversy between the parties, this portion of the regulation must be satisfied, and it has.not been. We have already addressed the timeliness issue. As to factors two and .

P four, these almost always favor the movant, and are entitled to less' weight in any event."

10 CFR S 2.734(d).

U Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986); South Carolina Electric and Gas Comoany (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).

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s Commission " case law' establishes both the importance of the third' factor in the evaluation of late-filed contentions and the necessity of the moving party to demonstrate that it has special expertise on.the subjects which it seeks to raise. (Citation omitted.) The Appeal Board has said: 'When a petition addresses this criterion it shou'ld' set out with as much particularity as possible the precise issues it plans to cover,' identify its prospective witnesses, and summarize their proposed testimony'."" on a cursory look, the Motion might be viewed as having complied with the requirements of the third criterion; but, on close inspection, it has not. The affiant is not competent to testify on the issues sought to be raised. The

- affidavit consists, for the most part, of repetitions of what is-

! in documents which' speak for themselves. ~Nowhere in his qualifications is there any indication that he is an expert on the_particular devices here involved.

As to the fifth factor there can be little doubt of the ,

potential for delay which can result from the allowance of the motion at bar. And, in any event, allowance of the Motion clearly will " broaden the issues" and criterion 5 is set forth in the disjunctive. The analysis of the five factors weighs against-allowance of the Motion.

U Commonwealth Edison comoany '(Braidwood Nuclear Power l

Station, Units 1 and 2), CLI-86-8,.23 NRC 241, 246 (1986), citina with anoroval, Mississioni Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2),

ALAB-704, 16 NRC 1725, 1730 (1982). Accord, Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 483-84 (1989).

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CONCLUSION The motion should be denied.

' Respectfully submitted, i

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Thomas G. Ditfirin, Jr.

George H. Lewald Kathryn A. Selleck Jeffrey P. Trout

' Ropes & Gray i One International Place  !

Boston, MA 02110-2624 (617) 951-7000.  !

Counsel for Applicants l

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