ML20012D680
| ML20012D680 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/20/1990 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-10135 LBP-89-32, LBP-90-01, LBP-90-1, OL, NUDOCS 9003280230 | |
| Download: ML20012D680 (48) | |
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i-DOCKETED 'l USNRC W mR 23 PM7&h 20, 1990 UNITED STATES OF AqlQgAJF SECRETARY 00CKL liHO A SfifVICl. -
NUCLEAR REGUIATORY COMMISSTON:CH before the g
ATOMIC SIFETY AND LICENSING APPEAL 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)
) l
)
On Appeal From A Decision of the Atomic Safety and' Licensing Board LBP-90-1 (Januarv 8. 1990)
LICENSEES' BRIEF Thomas G. Dignan, Jr.
George H. Lewald ,
. Jeffrey P. Trout Jay Bradford Smith Ropes & Gray !
One International Place Boston, MA 02110-2624 (617)951-7000 Counsel for Licensees l
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4 TABLE OF CONTENTS E Page TABLE OF AUTHORITIES . .. . . . . . . . . . . . . . . . . . 11- l STATEMENT;OF THE CASE , . . . . . . . - . . . . . . . . . . . . 1 -[
ARGUMENT . . - . . . . . . .. . . . . - , . . . . . . . . . . . 8 '
INTRODUCTION . . . .. . . . . . . . . . . . . . . . . . 8 ,
I. THE LICENSING BOARD DID NOT ERR IN RULING WHEN IT t
DID ON-MAG'S MOTIONS . . . . . . . . . . . . . . . 9 II. THERE WAS NO ERROR IN THE RULING THAT THE MOTIONS WERE UNTIMELY . . . . . . . . . . . . . . . . . . . 11 A. The Licensing Board Correctly Held the MAG Knew:or Should Have Known the Facts Since 1988 . . . . . . . . . . . .. . . . . . .. . . . 11.
B. MAG'S " Estoppel" Argument Was. Properly Rejected by.the. Licensing Board . . . . . . . 15 . ;.
C. This-Appeal Board Has Already Rejected MAG 3s
" Law of the Case" Argument . . .- . . . . . . . 18 III. THE LICENSING BOARD PROPERLY HELD THAT NO SIGNIFICANT SAFETY ISSUE EXISTS . . . . . . . . . . 19 A. The Licensing Board Found That No Colorable Challenge Was Raised to the Adequacy of Licensees' Existing Arrangements . . . . . . . 20 B. The Logic of ALAB-911 Applies to this Case . . 22 C.
The Existing State EBS Capacity, Used in Accordance with Best Efforts, Provides Additional Assurance that No Safety Issue.
ExiFtB . . . . . . . . . . . . . . . . . . . . 23 IV. THE LICENSING BOARD CORRECTLY FOUND THAT NO MATERIALLY DIFFERENT RESULT WOULD HAVE BEEN LIKELY .. . . . . . . . . . . . . . . . . . . . . . 25-V. THERE WAS NO ERROR IN THE RULING THAT THE MOTIONS FAILED THE FIVE-FACTORS TEST , . . . . . . . . . . 26 i CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 28 i'
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TABLE OF AUTHORITIES i
Cases PASLR Arizona v. California, 460 U.S.
605,.618 (1983) . . . . . . . -. .. . . . . . . . . . . . . 19 i
Bouchet v. National Urban Leacue. Inc.,
730 F.2d 799, 806 (D.C. Cir. 1984) . . . . . . . . . . . . . 19 ,
Clausen v. Smith, 823 F.2d 660 1 (1st Cir. 1987) . . . . . . . . . . . . . . .. . . . . . . 16 !
Commonwealth of Massachusetts et al.
- v. NRC, No. 89-1743, Order (unpublished) (March 7, 1990) . . . . . . . . . . . . . .. 10 Consolidated Edison Comoany of New York (Indian Point Station, Unit 2),
ALAB-243, 8'AEC 850, 853-54 (1974) . . . . . . . . . . . . 15
-L Duke Power Co.-(Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983) . . . . . . . . . . . . . .. . . 13 Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1), LBP-84-17, 19 NRC 878, 886 (1984) . . . . . . . . . . . . .. . . . . . . . . . . 13 Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1),
LBP-84-26, 20 NRC 53, 58 n.2 (1984) aff'd, ALAB-798, 21 NRC 357'(1985) . . . . . . . . . . . . 18 1
Kansas Gas and Electric Co. l
.(Wolf Creek Generating Station, i Unit 1), ALAB-462, 7 NRC 320, 338.(1978) '
. . . . . . . .. . . . . . . . . . . . . . . . 20 Lona Island Liahtina Co. l (Shoreham Nuclear Power Station, l Unit 1), CLI-89-1, 29 NRC 89, 93 (1989) . . . . . . . . . . 20 l l
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EAEA '
-Oroanized Fisherman of Florida v..
Hodel, 775 F.2d 1544 (11th Cir. I
.1985), cert, denied, 475 U.S.
1169,(1986) . . . . . . . . . . . . . . . .. . . . . . . . . 16 ,
Pernetual' Buildina Linited'Partnershin
- v. District of Columbia, 618 I F.Supp. 603 (1985) . . . . . . . . . . . . . . . . . - . . . 16 Public Service Comoany of New Hamoshire (Seabrook Station, j Units 1 and 2), ALAB-917,1 29 ;
NRCL465, 471 (1989) . . . . . . . . . . . . . . . . . . . ~ . 17 '
-Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 ar.d 2) , - LBP-89-4, ,29 i NRC-62, 73, aff'd on other arounds, l
' ALAB-918, 29 NRC 473 (1989) . . . . . . . . . .. . . . . . 20 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), i ALAB-918, 29 NRC 473, 482 (1989) . .. .. .. . . . . . 26, 27 Public Service Comoany of New Hamoshire "l (Seabrook Station, Units 1 and 2),
ALAB-927,.31 NRC __ (Feb. 26, 1990) . . . . . . . .. . 13, 19 Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2),
CLI-90-3, 31 NRC __ (March 1, 1990),
slip op at 14-15 . . . . . . . . . . . . . . . . . . . . . 10 Public Service Comoany of New Hamoshire
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l (Seabrook Station, Units 1 and 2),- l LBP-90-1, 31'NRC __ '
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(Jan. 8, 1990) . . . . -. . . . . 1, 5-7, 11, 16, 21-23, 25-28 l Public Service Comoany of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-505, 8 NRC 527, 532,-
L reconsideration denied, ALAB-508, L
8 NRC 559 (1978). . . . . . . . . . . . . . . . . . . . . . . 9 !
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Page
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Pucet' Sound Power and Licht Co.
(Skagit Nuclear. Power Project, Units 1 and 2) ,- ALAB-559; 10 NRC 162,r168E(1979), vacated ps moot,.CLI-80-34, 12 NRC 407 (1980) . . . . . . . . . . . 13 Ouern v. Jordan, 440 U.S. l 332, 347 n.-18: (1979)~. . . . . . . . . .. . . . . . . . . . U ,
Regulations
.10 C.F.R.-9 2.713(a)
. . . . . . . . . . . . . . . .. . . . .9 10 C. F.R. ' 5 2. 714 (a) (1) (1)-(v) _. . . . . . . . . . . . . . . . 126 K
Other Authorities
- 51. Fed. Reg. 19535,.19538 (May 30, 1986) . . . . . . . . . . 20 f
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UNITED STATES 0F AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of )
)
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)
)
)
On Appeal From A Decision of the Atomic Safety and Licensing Board LBP-90-1 (Januarv 8, 1990)
LICENSEES' BRIEF STATEMENT OF THE CASE This is an appeal from a decision of the Atomic Safety and Licensing Board (hereinafter " Licensing Board" or " Smith Board")
wherein the Licensing Board denied two motions to reopen the closed evidentiary record and admit a late-filed contention.2-This matter commenced on October 30, 1989, when the Attorney u General of The Commonwealth of Massachusetts (MAG), on behalf of 1
Public Service Comoany of New Hameshire (Seabrook i
Station, Units 1 and 2), LBP-90-1, 31 NRC __ (Jan. 8, 1990)
[ hereinafter referred to as "LBP-90-1" and cited to the slip opinion).
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himself, the Seacoast Anti-Pollution League, and the New England .
Coalition on Nuclear Pollution filed a motion "to admit a late-
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filed contention and reopen the record,"3 which motion was based upon a.then. unsigned affidavit Written by MAG and attributed to one Royce N.- Sawyer.a Mr. Sawyer was (and is) an employee of the-Massachusetts civil Defense Agency (McDA) and apparently is the
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individual in that agency most knowledgeable about EBS.'
In this first motion, MAG represented that the accompanying 1
unsigned affidavit attributed to Mr. Sawyer had his
" authorization and approval."5 In fact, Mr. Sawyer did not approve the affidavit in the form it was filed.'- Instead, between November 3 and November 7, 1989, he attempted to have MAG ,
l to correct the affidavit, while MAG attempted to have him to sign it essentially as it was.' Finally, after Mr. Sawyer sent two memoranda.to his superior questioning the. key allegations of the q l
2 Intervenors' Motion to Admit a Late Filed Contention and i Reonen the Record on the SPMC Based UDon the Withdrawal of the Massachusetts E.B.S. Network and WCGY (Oct. 30, 1989) '
(hereinafter "Oct. 30 Motion"). 1 a
Statement of Royce N. Sawyer (Nov. 17, 1989, affirmed l under oath February 13, 1990) [ hereinafter " Sawyer Statement"),
attached hereto as Exhibit A. )
Oct. 30 Motion at 9 (Sawyer is "a witness who possesses I special expertise on the topic of the EBS in Massachusetts"); gag '
313Q Sawyer Statement.
8 Oct. 12 Motion at 12.
Sawyer Statement.
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4 V i affidavit,' and after MAG refused to make the changes Sawyer requested, MAG promised Sawyer that'the affidavit would be I withdrawn.' On November 8, 1989, MAG notified the Licensing Board and the parties that he was withdrawing his October 30 motion." That notification, however, contained no indication that MAG's affiant had in fact repudiated the key portions of the affidavit upon which the October 30 motion relied."
Sgg, e.g., attachments to Sawyer Statement: "I am also ccncerned with the wording in paragraph 4 that states 'there does not exist any provision for insuring that notification is made to the public in the Massachusetts emergency planning zone for Seabrook Station within the 15 minutes required by NUREG 0654, FEMA-REP-1, Revision Appendix 3'" (Nov. 6 memo); and " paragraph 4 should be eliminated in its entirety" (Nov. 7 memo).
Sawyer also sought, unsuccessfully, to have added to the affidavit the key fact that "the existing dedicated communications systems now in place between the NHY, Civil Defense and WROR does provide a path into the EBS system in the Merrimac-Valley area." Sawyer Jtatement; Egg also Nov. 6 memo
(" Massachusetts Civil Defense, if notified by New Hampshire Yankee of an incident affecting public safety, could. activate the Emergency Broadcast System from this agency's headquarters.").
Sawyer Statement.
Withdrawal of Motion (Nov. 8, 1989).
" Indeed, it appears that MAG may have misled the Id.
Licensing Board as to why the October 30 motion was withdrawn.
According to MAG, on November 8, 1989, one of MAG's attorneys called =the clerk to the Licensing Board.and " explained the circumstances surrounding Intervenors' witness Royce Sawyer's decision . . . not to participate further in the Seabrook proceeding by testifying at any subsequent hearing." Affidavit of John Traficonte (Dec. 1, 1989), Exhibit 1 to Intervenors' Brief in Succort of Their Acceal of LBP-90-1 (Feb. 16, 1990)
[ hereinafter " Int. Br."] MAG's attorney is curiously circumspect as to just what he said to the Board's clerk, but characterizes as " accurate" the representation that " Sawyer had simply 'gotten cold feet' about getting involved in the Seabrook case." Id.
- o. l On-November 9, however, MAG filed essentially the same motion to reopen.12 Included with this November 9 motion was the Sawyer affidavit, with no disclosure that Sawyer had-repudiated it'or that-MAG had promised Sawyer that it would not be filed." -
The central allegation of both the October 30 and November 9 motions was that it was now allegedly impossible for Licensees to activate the Massachusetts EBS system in the event of a radiological emergency at Seabrook." MAG based this assertion on the fact that the co-chairman of the Massachusetts EBS had unilaterally renounced a letter of agreement he had entered into with Licensees and then induced the management of WCGY, QDA of the radio stations with whom Licensees had a separate letter of agreement, to cease cooperating with Applicants as well."
On November 22, 1989, MAG filed yet another EBS-related motion, this one premised on the assertion that the emergency coverage provided by WHAV and WLYT, the two EBS radio stations
.still under agreement with Licensees, was inadequate because the l'
12 Intervenors' Motion to Admit A Late Filed Contention and Recoen the Record'on the SPMC Based Uoon the Withdrawal of the l Massachusetts E.B.S. Network and WCGY (Nov. 9, 1989) (hereinafter "Nov. 9 Motion").
" Compare Nov. 9 Motion at 5-6 and Atthchment H with (I
' Sawyer Statament.
" Nov. 9 Motion at 2; Oct. 30 Motion at 2.
" Id.; 333 also Affidavit of Doualas J. Rowe Recardina the Voidina of the EBS Letters of Aareement (Oct. 27, 1989),
Attachment G to Nov. 9 Motion, at 1 5; Affidavit of John F.
Bassett Recardina the Voidina of the EBS Letters of Aareement (Oct. 27, 1989), Attachment F to Nov. 9 Motion, at 11 4-5.
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. everyday-listenership of_those two stations was small'.*' In this filing;too MAG did not disclose that Royce Sawyer had repudiated the. key assertions underlying MAG's principal motion. ]
i Answers to'the November 9 and 22 motions having been filed ,
by both the Staff and the Licensees, the Licensing Board issued j the decision at bar, which denied both motions._
The Licensing Board, applying the criteria of 10 C.F.R. 5 2.734, first found that MAG' knew or should have known since at least 1988 the key facts underlying his motions, thus making the motions untimely." Giving MAG the benefit of an argument he had i not made, however, the Board went on to consider whether Licensees' introduction of evidence in the SPMC proceeding alludingJto the WCGY letter of agreement, which was subsequently repudiated, might entitle MAG to some equitable relief from the timeliness requirement.28 After a thorough review of the undisputed facts, the Licensing Board concluded that Licensees' conduct did not give rise to any estoppel."
Turning next to the question of whether MAG's motions raised a significant safety issue, the Licensing-Board concluded that it i
did not, on three separate and independently sufficient I
l' Intervanors' Motion to Add an Additional Basis to the Late Filed Attached Contention to the Motion of November 9. 1939 (Nov. 22, 1989) [ hereinafter Nov. 22 Motion].
" LBP-90-1 at 6-11.
l' Id. at 12. l Id. at 12-14.
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1 grounds.20 First, the Board concluded that, even without the participation of WCGY, Licensees still unquestionably provided adequate EBS coverage with their remaining stations, WHAV and WLYT. 21 second, the Licensing Board embraced the reasoning of the Appeal Board in its advisory opinion ALAB-911, to the effect that "an applicant could properly rely on a state's EBS network to provide emergency information to the public even if it had not ;
- obtained letters of agreement with the participating stations."88 Finally, independent of ALAB-911, the Board concluded that the evidence concerning the capacity of the Mass EBS network,23 when i
viewed in conjunction with the irrebuttable presumption that ,
Massachusetts officials would use their best efforts to respond to a radiological emergency at Seabrook, rendered insignificant the allegations which MAG sought to litigate.*'
Next the Licensing Board concluded that, even if MAG's allegations had been raised and litigated while the record was 2
Id. at 15-29.
21 Id. at 16-17; ggg also id. at 30. I 22 Id. at 17-21, quoted at 17.
23 The Licensing Board reached this conclusion even without having access to the fact, suppressed by MAG, that a dedicated line is already in place running from Licensees to MCDA, while a dedicated radio link exists between MCDA headquarters and the '
state's lead EBS station, WROR. Egg Sawyer Statement, quoted at suora note 8; g33 also Massachusetts Attorney General's Second Sucolemental Resoonse to NRC Staff's First Set of Interroaatorigg and First Recuest for Documents (Dec. 19, 1989) at 9.
2' LBP-90-1 at 22-29.
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? open, a' materially different result would not have been likely.28 At most, the Board concluded that it might have directed Licensees to make a' minor textual change to its backup EBS provisions.26 Finally, the1 Licensing Board reviewed the-five factor test for late-filed contentions, and concluded that MAG's motions failed the first, third, and fifth factors, and thus were inadmissible cn1 that ground as well.27 It-is in the foregoing posture that this matter comes before 1
this Appeal Board.as j e
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.L1. at 29-31. f 2'
Id. at-30.
27 Id. at 31-36. l i
as Between November 22, 1989 and February 16, 1990, when !
MAG filed hisLbrief on appeal of the present matter, MAG four j times. raised the EBS issue in briefs to the Appeal Board and to the Commission, without disclosing the repudiation of its underlying premise, and twice MAG. filed with this Board the repudiated' affidavit. ERA Intervenors' suoolemental Motion and- '
Memorandum in Suomort of November 13 Motion to Revoke and Vacate the: November 9 License Authorization (Dec. 1, 1989) at 76-80; Massachusetts Attorney General's Comments on the Immediate ,
~ Effectiveness ~ Issue (Dec. 1, 1989), at 7-8; Brief of the .
Massachusetts Attorney General in Sucoort of his Amoeal of LBP- 3 89-32 (Jan. 24,.1990) at 89-90 and Exhibit 1; and Mass AG's Motion to Recoen the Record (Feb. 1, 1990) , Rassim.
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ARGUMEET 4-INTRODUCTION As is discussed above,29 the Licensing Board denied MAG's motions.for at least six distinct and independently sufficient reasons: they were untimely; for three different reasons they failed to raise significant safety issues;,they would not likely have produced a materially different result;.and they failed the five-factors test. In order to obtain reversal, MAG would have to prevail as to all of these rulings. As is discussed in detail below, MAG in fact has not shown error in ADY of the rulings.
Before turning to the merits of MAG's arguments, however, this-Board should address the question of whether it should even entertain MAG's appeal. The facts now available suggest that MAG's claims were grounded in misrepresentation and thereafter preserved by apparent concealment and deception.'l The regulations require that attorneys appearing before this agency " conduct themselves . . . as they should before a court of 29 Sag suDra at notes 17-27 and accompanying text.
In his brief of-February 16 on the instant appeal, MAG stated that he " shortly" would be filing a " reply" to the facts which Licensees had brought to the attention of this Board three days earlier. Int. Br. at 3 n.3. Today, more than a month L later, we are still waiting for MAG's promised " reply."
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- j Sag supra at notes 3-13 and. accompanying text; gas also suora at notes 23, 28. i l
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law."s2 This includes aLrequirement not to misrepresent or conceal pertinent facts.* While it is true that the result of a g
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client suffering the loss of a meritorious claim because of alleged misconduct of counsel is not favored, the misconduct here was by MAG himself, 123 the " client," and, in any event, the
.. disclosure by the original affiant demonstrates the baseless nature of MAG's underlying claim to begin with. Summary affirmance is in order.
E ~I.- THE LICENSING BOARD DID NOT ERR IN RULING WHEN IT DID ON MAG'8 MOTIONS. ,
MAG's brief begins with the assertion that the Licensing-
-Board-had no authority to issue the decision at bar, and that
.this Board accordingly should either summarily strike the decision or at least ignore the findings and reasoning that it contains.8' To the extent that MAG articulates any colorable basis for this assertion,88 his arguments are foreclosed by the-l 88 10 C.F.R. S 2.713(a).
88 Ezg., Public Service Comoany of' Oklahoma (Black Fox L Station, Units 1-and 2), ALAB-505, 8 NRC 527, 532, L reconsideration denied, ALAB-508, 8 NRC 559 (1978).
8' Int. Br. at 3-8.
l; 88 D In the main, MAG's argument is yet one more in a series l
of personal attacks on the Licensing Board which he has been routinely making whenever he disagrees with the Board's u decisions. It is significant to note, however, that for all ;
I MAG's-attacks on the-Board's supposed partiality, he has never formally challenged it in accordance with the proper procedures.
l This failure is understandable, since a review of the actual record of this proceeding would reveal that this Licensing Board has been excruciatingly fair to (and indeed often exceptionally
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recent action of the United States Court of. Appeals for the-District 1of Columbia Circuit in dismissing MAG's petition for directoreview of LBP-89-32, and expressly holding that-that decision."is not a final order granting or denying a license, and therefore.is not independentlyureviewable."8' Thus MAG's argument, that LBP-90-1-must be struck because jurisdiction had passed to the Court of Appeals, is simply wrong. Likewise, MAG's argument that LBP-90-1 should be ignored as a "R211 facto l rationalization,"88 collapses-in the face of the Commission's explicit approval of the procedure adopted by the Licensing Board in handling this and others of MAG's spate of eleventh-hour delaying motions.- Accordingly, the Licensing Board's decision ;
should be accorded the same weight as would be accorded any other thoughtful, thorough, and well-reasoned decision by a trial board of this agency that has spent more than three years dealing with I the myriad factual issues of a mammoth and complex case.
. tolerant of) MAG.
Cn==nnwealth of Massachusetts et al. v. NRC, No. 89-1743, Order (unpublished) (March 7, 1990) , Attachment B hereto.
'37 Int. Br. at 7-8.
8 Id. at 8.
3' Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC __ (March 1, 1990),
slip op. at 14-15. ERR ales 14. at 56 (in the non-binding, immediate-effectiveness portion of that decision).
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II. THERE WAS NO_ ERROR IN THE RULING THAT THE MOTIONS WERE' UNTIMELY.
The Licensing: Board held that MAG motions were untimely, that "Intervenors knew or should have known as early.as 1988 that
-the Massachusetts EBS and the agreement with WCGY was not essential to the method of alerting the public relied'upon by"
. Licensees. MAG counters this finding with three arguments: '
(1) that the Licensing Board applied the wrong legal test for timeliness;'l (2) that the Licensees are estopped'from-denying that they materially relied on WCGY;'* and -(3) that the Atomic Safety and Licensing Board hearing on-site matters (hereinafter the."Bloch Board") held that Licensees rely on WCGY, making that ,
holding the " law of the case".' We address each argument in turn below.
A. The Licensing Board Correctly Reld the MAG Knew or should'Have Known the Facts Since 1988.
The Licensing Board's finding of fact, that MAG knew or at least should have known as much as two years ago that Licensees relied upon WHAV and WLYT for initial EBS notification and were therefore pursuing WCGY as, at most, a backup, is amply supported i
LBP-90-1 at 9.
'l Int. Br. at 9-19.
42 Id. at 19-25.
'8 Id. at 25-28.
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3 by the record.." Moreover,"the finding is in~ accord with this l
Board's observation, after reviewing _the same factual record, that "the Attorney General did not make a timely challenge before r l Egg, gigt, Seabrook Station Public Alert and Notification System FEMA-REP-10 Desian Reoort at 1-3 and 1-4; Attachment A to. Affidavit of Anthony M. Callendrello (Nov. 14, 1989)(hereinafter "Callendrello Aff."), which was filed as Exhibit-I to Aeolicants' Answer to Intervenors' Motion to Admit a. '
Late-Filed Contention and Reocen the Record Based Uoon the Withdrawal of the Massachusetts E.B.S. Network and WCGY (Nov. 15, 1989)(hereinafter "Anolicants' Answer"); FEMA Exercise Renort 1 (Sept. 1, 1988) at 214-215, Attachment D to Callendrello Aff.;
FEMA Review and Evaluation of the Seabrook Plan for Massachusetts Communities (Dec. 1988) at 24, Actachment C to callendrello Aff.;
Decosition of Grecorv Howard (Nov. 16, 1988), MAG ~Ex. 126 at p.
129; SPMC 3.2-16, 3.2-17 and Table 3.2-1 at 4; id. Appendix G at G-30 and G-31; Tr. (Bloch Board) 147-151; II. 27893-94. Egg also Decosition of Gary Catacano (Nov. 17, 1988) at 157-58, Attachment C hereto:
"Q Now, you know that there is an EBS station with whom, or that has an agreement with ORO [Offsite Response
' Organization)?
A. Yes.
Q. Is it your understanding that the EBS station that has signed an agreement is the same EBS station that is part of the Massachusetts Emergency Broadcast System?
A. Yes.
Q. And it is the same?
A. They are part of the emergency broadcast.
Q. The one the ORO has contracted with is_part of the Emergency Broadcast, Massachusetts Emergency Broadcast system?
A. Yes.
Q. Are we talking about WLYT?
A. WLYT and WHAV are co-located AM and FM stations."
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.the Bloch Boardito'the ability of WHAV and WLYT, under their.
contractual arrangement with the applicants, to provide the necessary radio notification. "'S .
MAG does not challenge this finding of fact head on." :
Instead, he argues that "the Board employed the wrong test'for I determining whether a-motion is timely."" MAG asserts'that the proper test-is "whether the evidence cculd, with reasonable diligence, have been discovered and presented prior to the close of the record." Although MAG would seem to be wrong in {
objecting to the Licensing Board's " knew or should have known" formulation," the semantic issue he raises would at first seem to be an irrelevant one, since MAG's own proffered "could with reasonable diligence have been discovered and presented"
'S Public Service Comoany of New Hamoshire (Seabrook ;
' Station, Units 1 and 2), ALAB-927, 31 NRC __ (Feb. 26, '
1990)[ hereinafter referred to as "ALAB-927" and cited to the slip opinion)-at 6 n.6.
Indeed, it is noteworthy that MAG never has submitted any affidavit as to what he knew and.when he knew it, although ;
the-requirements of 10 C.F.R. 52.734 call for each criterion, including timeliness, to have affidavit support.
Int. BE. at 9. ;
Id. at 10 (emphasis in original). I Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), R CLI-83-19, 17 NRC 1041, 1048 (1983); 333 also Puaet Sound Power and Licht Co. (Skagit Nuclear Power Project, Units 1 and 2),
ALAB-559, 10 NRC 162, 168 (1979), vacated as moot, CLI-80-34, 12 i NRC'407 (1980); Kansas Gas & Electric Co. (Wolf Creek Generating I Station, Unit No. 1), LBP-84-17, 19 NRC 878, 886 (1984). 1 l
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f
formulation seems, for all practical and legal purposes, identical.
It is the next step in MAG's argument, however, that must be scrutinized carefully. Having first stated that the test is "whether the evidence could, with reasonable diligence, have been discovered and presented" earlier,80 MAG then chances the definition: "The issue . . . is not whether the Intervenors knew or should have known about the intentions of the Applicants, but whether even if the Intervenors had known, could the Intervenors have challenged the notification provisions of the SPMC because the EBS was lacking."" This, MAG asserts, he could not do until October 20, 1989, because prior to that time Licensees would have had a quick answer to the challenge -- i.e., that Licensees were pursuing a backup arrangement with WCGY and contemplated establishing a backup direct dedicated link to WCGY.88 In essence, MAG has changed his own formulation of the test, from when could he have raised the issue to when would he have been likely to oravail on the issue. MAG cites no case law or other capport for this latter standard, and there is none.
Moreover, MAG's underlying reasoning is flawed. If he had raisod the issue in 1988, as the Licensing Board found he could have based on the information then available, then there would have Int. Br. at 10.
" 14. at 11 (emphasis in original).
82 Id. at 11-12.
7 been two possible outcomes: (1) the Licensing Board could then have found Licensees' reliance on WHAV and WLYT to be sufficient; or (2) the Licensees would have been required to complete their backup arrangements with WCGY, presumably including the completion of the direct link to WCGY, the absence of which is the entire factual predicate of MAG's EBS notion." That the latter would have been a relatively easy fix is no excuse for MAG's delay in raising the issue. The purpose of licensing proceedings is to fix what needs to be fixed to ensure public safety, not to spawn delay for the sake of delay.
- 3. MAG'8 " Estoppel" Argument Was Properly Rejected by the Licensing Board.
MAG next claims that, regardless of the facts, Licensees are bound by the doctrine of estoppel to the fiction that they relied on WCGY." Interestingly, in making this argument, MAG does not point to even a single instance where he claims to have been ?
misled by Licensees saying that they relied on WCGY as a backup.
" As Licensees keep pointing out, they have always been willing, and remain willing today, to complete the link to WCGY.
( Egg g2gt, Affidavit of Georce R. Gram (Nov. 14, 1989) at 116-7, 9, Attachment III to Acolicants' Answer.
54 l
See, e.g., Consolidated Edison Comoany of New York i (Indian Point Station, Unit 2), ALAB-243, 8 AEC 850, 853-54 l (1974). -
1Dt. Br. at 19-25.
1 l=
0 !
t Instead, MAG simply enumerates occasions when Licensees referred :
to "EBS" and then insists that "EBS" must mean WCGY."
MAG did not make an estoppel argument in his pleading below.
Rather, the Licensing Board raised the issue on its own initiative, considered it carefully, and concluded that Licensees ,
had neither (i) changed their position of relying on WLYT and l WHAV, nor (ii) deliberately misled the Board or the parties as to the supplemental role of WCGY." MAG does not challenge either of these conclusions. Rather, he now argues for the first time that a different type of estoppel was at work, that Licensees unwittingly " lull (ed) (him) into inaction.""
Normally, for estoppel to occur, a party must knowingly induce another party to rely on his words or actions, the reliance must in fact occur, and that reliance must have been reasonable." As noted above, MAG has already lost as to the first necessary element. But even assuming MAG did not have to ,
show an intent to deceive on the part of Licensees, he still Id. at 21-23.
" LBP-90-1 at 10-14. The Board also noted that Licensees'
" sound and laudable" efforts to provide a backup beyond the regulatory requirements "sho0ld not return to haunt them in litigation if those efforts fail." Id. at 14 and n.24.
Int. Br. at 20.
" Eig., Clausen v. Smith, 823 F.2d 660 (1st Cir. 1987); '
Orcanized Fisherman of Florida v. Hodel, 775 F.2d 1544 (lith Cir.
1985), cert. denied, 476 U.S. 1169 (1986); Percetual Buildina Limited Partnershio v. District of Columbia, 618 F.Supp. 603 (D.
D.C. 1985).
. l I
would not have demonstrated a right to equitable estoppel. MAG i has never offered any evidence that he in fact relied on any ,
words or conduct by Licensees. Moreover, given the Licensing Board's uncontested finding that, as early as 1988, MAG knew or !
should have known that Licensees' EBS plans turned upon WLYT and WHAV, any such reliance clearly would have been unreasonable. On the facts, therefore, MAG has not made even the beginnings of a I case that estc>pel should lie against Licensees.
On the other hand, MAG still has not answered Licensees' repeated argument that ha is estopped from pursuing these EBS [
motions.'1 In May 1989, MAG stipulated that the normal radio listenership of the EBS stations Licensees intended to use '
(whatever stations MAG thought those to be) was so small as to be ,
insignificant.'8 In June 1989, MAG insisted on a stipulation '
requiring virtually every page of every piece of pre-emergency information distributed by Licensees to identify the call letters Egg supra note 46.
'l Egg Aeolicants Resnonse to "Intervenors' Motion to Add an Additional Basis to the Late Filed Attached Contention to the M231on of November 9. 1989" (Dec. 2, 1989) at 7-8 and n.14, 10 '
and n.19; Annlicants' Response to " Mass AG's Motion to Reocen the Record" (Feb. 13, 1990) at 15-18.
As this Board recently observed, "[w) hen a party totally fails to come to grips with pivotal and manifestly nonfrivilous arguments advanced by an adversary, a permissible inference ;
arises that that party recognizes the force of the arguments;"
Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2) , ALAB-917, 29 NRC 465, 471 (1989).
Tr. (Bloch Board) 149-150.
~17-
. - . .. ~.
! e ;
I, and frequencies of the EBS stations Licensees intended to use.
Having made those stipulations and taken advantage of them," MAG simply cannot now be heard to argue that the participation or ;
nonparticipation of WCGY has any significance.'8 C. This Appeal Board Ras Already Rejected MAG's " Law of [
the case" Argument.
l MAG's final timeliness argument is that, because the Bloch ;
Board noted that Licensees employ EBS broadcasts for emergency j l
notification, the Smith Board was required to find that Licensees !
relied upon WCGY." This argument, much of which is posed in the '
form of rhetorical questions, itself begs the central question, which is what EBS mechanism the Bloch Board was considering. j There simply is no evidence that the Bloch Board ever considered, let alone decided, the question of whether Licensees were relying solely on WHAV and WLYT, or whether WCGY was a material part of :
their plan.- (Indeed, there could be no such evidence, since if MAG had raised the issue before the Dloch Board in May 1989, his
'3 Joint StiDulation Recardina Pre-Emeraency Information Issues (June 30, 1989), ff. Tr. 28285, at 2-4.
" 3.33 Massachusetts Attorney General's ProDosed Findinas ,
and Rulinas of Law with ResDect to Siren Issues (June 12, 1989) at 29.
E.g., Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 58 n.2 (1984) aff'd, ALAB-798, 21 NRC 357 (1985).
Int. Br. at 25-28.
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motions to the Smith Board in November 1989 would clearly have been untimely.) And as this Board has already found:
"we are unpersuaded from a reading of the Bloch Board's June 1989 decision on the VANS proposal that its approval of that proposal hinged to any significant extent on the participation of WCGY. On this score, it is noteworthy that the principal EBS relied on by the applicants for the Massachusetts l~ communities does not include WCGY but, rather, employs two stations (WHAV and WLYT) with which the applicants have a contractual arrangement.""
There being no clear and necessary holding by the Bloch Board that Licensees relied on WCGY, the doctrine of law of the case has no applicability," even if the Smith Board in its discretion had decided to look to the Bloch Board for guidance."
III. THE LICENSING BOARD PROPERLY RELD TRAT No SIGNIFICANT SAFETY '
ISSUE EXISTS.
MAG scrambles his attack on the Licensing Board's findings as to safety significance and materially different result into a single disjointed argument that is very difficult to disentangle.7' Conspicuously absent from MAG's argument is any
" ALAB-927 at 5.
" "The doctrine of law of the. case comes into play only with respect to issues previously determined." ouern v. Jordan, 440 U.S. 332, 347 n. 18 (1979); 113 also Bouchet v. National Urban Leaaue. Inc., 730 F.2d 799, 806 (D.C. Cir. 1984).
" " Law of the case directs a court's discretion, it does not limit the tribunal's power". Arizona v.. California, 460 U.S.
605, 618 (1983). <
7' Int. Br. at 28-40. ,
1
acknowledgement that the burden of demonstrating that the allegations raised a significant safety issue was on him, and that that burden is a heavy one." MAG could not, as he seems to imply," merely allege that a significant safety issue exists and then sit back while Licensees tried to prove the non-existence of the problem. Rather, MAG had the burden to show, not with f lawyer's assertions, but with factual documentation " tantamount to evidence", that he carried each and every requirement of 10 C.F.R. 2.734 (a) ." This he totally failed to do below.
i i
A. The Licensing Board Found That No Colorable Challenge was Raised to the Adequacy of Licensees' Existing Arrangements. ,
Licensees' principal argument as to safety significance has
- always been a simple one: WHAV and WLYT, two primary Massachusetts EBS stations who are committed to provide notification to the public at the request of Licensees and are ,
directly linked to Licensees by a dedicated line, are able to provide the necessary EBS notifications well within the 15 minute regulatory requirement. Licensees presented not only their own 51 Fed. Reg. 19535, 19538 (May 30, 1986); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978). Accord, Public Service Comoany of New Hamnshire (Seabrook Station, Units 1 and 2), LBP-89-4, 29 NRC 62, 73, aff'd on other arounda, ALAB-918, 29 NRC 473 (1989).
Int. BI. at 29-30.
" Exg., Lona Island Liahtina Co. (Shoreham Nuclear Power .
Station, Unit 1), CLI-89-1, 29 NRC 89, 93 (1989).
7' Aeolicants' Answer at 12-13.
1 l
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. i affiants in support of this fact," but also have pointed out that FEMA has exercised and approved the reliance on WHAV and WLYT."
MAG has never questioned the ability of WHAV and WLYT to be on the air within the requisite time. Instead, his only argument has been that not enough people will hear WHAV and WLYT quickly i enough." That assertion, in turn, is based upon a single fact - '
- that the ordinary, non-emergency listening audiences of WHAV ,
and WLYT are relatively small." That fact, however, simply does not get MAG to where he has to be in order to carry his burden of .
showing that a significant safety issue exists. Aside from weak ,
assertions by his affiant Kelsey, who clearly (as the Board found and MAG does not now challenge)" has no demonstrated expertise '
as to amergency radio audiences, that it is " conceivable" that the small normal listenership has the " potential" to generate a '
Callendrello Aff at 113-13, 16; gas also Affidavit of Garv J. Catacano (Nov. 13, 1989), Exhibit II to Aeolicants' ,
Answer, at 153-4.
" Egg Attachments C and D to callendrello Aff.
MAG's j attempt to brush aside the FEMA findings because " FEMA found that the SPMC relied on the use of the EBS" is unsupported. The record is clear that FEMA knew exactly which stations Licensees i relied upon. Egg caliendrello Aff. at 1 10; see also Attachment ,
D to callandrello Aff. (Exercise Report specifically refers to l g WLYT). 1
" I' Egg, gigt, Nov. 22 MotioD at 13-14.
Affidavit of A. Anthony Kelsey (Nov. 21 1989), ,
! [ hereinafter "Kelsev Aff.") Attachment E to Nov. 22 Motion, at l 14.
LBP-90-1 at 36.
l l l . . . .
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small emergency listenership," MAG has shown no factual link whatsoever between how many people listen to WMAV and WLYT at any given moment on an ordinary day and how many would tune to them during a radiological emergency."
Given the strong evidence presented by Licensees and the vital evidentiary gap in MAG's counter-assertions, it is not surprising that the Licensing Board found that WHAV and WLYT can get the job done on their own." What is surprising, however, is that MAG scarcely challenges that finding on appeal, giving it just two sentences which in turn only summarize his unsuccessful arguments below." Having defaulted (again) as to the adequacy of WHAV and WLYT, MAG simply cannot prevail on the issue of l
safety significance.
{
B. The Logic of ALAB-911 Applies to this case. '
Even if the Licensing Board had not found Licensees' existing arrangements to be adequate without WCGY, the logic of",
ALAB-911 would dictate that MAG's assertio.ts fail to raise a significant safety issue. Here, as in the Shoreham proceeding, Kalsav Aff. at 15.
Moreover, MAG would be estopped to make such an assertion, given his previous stipulations in this proceeding.
Esa supra at notes 61-65 and accompanying text.
LBP-90-1 at 16; see also id. at 30 (" Applicants have established that their arrangement with WLYT and WHAV meets regulatory requirements").
M . Br. at 39-40.
L .!
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)
the Licensing Board found the EBS plans to be acceptable even after the state EBS network stopped cooperating with the ;
1 licensees." Indeed, Licensees have presented a stronger case than did the applicant in Shoreham, since here the Licensees have still in place an operative stand-alone EBS station link.
C. The Existing State EBS Capacity, Used in Accordance with Best Efforts, Provides Additional Assurance that i No Safety Issue Exists. ,
MAG devotes the bulk of his argument on safety significance' to an attack on the Licensing Board's third alternative reason for finding no significant safety issue, i.e., the finding that in an actual emergency the Governor could and would have the lead state EBS station, WROR, activate WCGY and any other needed stations." MAG characterizes the Board's analysis as a "fix",
and, with great rhetorical flourish," claims that the "fix" has not been shown to work within the 15-minute regulatory timeframe.
There are at least three problems with MAG's analysis.
First, the burden is on MAG to show the existence of a i
significant safety issue." If he wants to allege that The Commonwealth of Massachusetts does not have an adequate EBS LBP-90-1 at 17-21.
fdEPAIA LBP-90-1 at 22-29 with Int. Br. at 32-38.
Int. Br. at 34.
Egg supra at notes 71-73 and accompanying text.
~
e I
.. t system in place, he is obligated to introduce evidence to that effect, and he has failed to do so.
Second, we have only the unsworn assertion of MAG's attorney that the 8-minute estimate for total statewide EBS activation contained in the Massachusetts Emergency Broadcast System Operational Plan does not include all the activation time."
Again, if MAG had wanted to explain (as opposed to obfuscate) the facts about The Commonwealth's actual capacities, he should have done so through the affidavit of a knowledgeable witness.
Third, and following from the second point, MAG's argument omits the fact -- suppressed by him when Royce Sawyer tried to insert it -- that Licensees have in place a direct dedicated link to MCDA headquarters, which in turn has a direct dedicated link to WROR." Thus MAG's argument that, "without any evidence of proper hardware such as a dedicated phone line being in place",
there is no assurance that activation could occur by way of WROR within 15 minutes," is not just disingenuous, it is blatantly deceptive, since MAG knows that such evidence _ exists and has deliberately withheld it from this Board."
Int. Br. at 33.
" Sawyer Statement.
Int. Sr. at 35.
" ERA supra note 23.
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! 1 l l 5
i l
IV. TER LICENSING BOARD CORRECTLY FOUND TEAT NO MATERIALLY DIFFERENT RESULT WOULD RAVE BREN LIKELY, on the subject of. materially different result, the Licensing f Board found that:
"Had the Intervenors' newly proffered evidence been considered initially by the ,
Board, the only result which we can even !
envision would be a direction to the Applicants to revise the SPMC to provide for ;
activation of the Merrimac Valley portion of l the EBS through WROR if WCGY cannot be reached in a timely manner."'8 MAG's only challenge'to this finding is his unsupported assertion !
that WROR cannot activate the state EBS stations in time." The i l
frailties of this argument are discussed in Section III.C above.
Alternatively, the problem alleged by MAG could be simply and easily resolved by completion of the direct link from NHY to I WCGY, something which Licensees have always stood ready to do."
In either case, it is clear that, even if everything MAG has postulated were true, the result would not have been materially different.
i
'* LBP-90-1 at 30. '
The Board also found that " correcting the SPMC to include specific procedures to activate the EBS through Station WROR would not require a significant revision to the plan." Id. at 31 n.54.
" At least, Licensees presume that MAG meant to contest that finding. Given MAG's failure to cite it specifically, and also given the muddle in that portion of MAG's brief, it is not entirely clear that the Board's finding is even contested.
" Ega suora at note 53.
- c.
V. TRERE WAS NO ERRok IN TRE RULING TRAT THE NOTIONS FAILED THE FIVE-FACTORS TEST.
l The Licensing Board also found that "[t]he balancing of the five factors set forth in 10 C.F.R. $ 2.714 (a) (1) (i)-(v) weighs ;
against the admission of the Intervenors' late filed -
contention."" This holding, reviewable only for an abuse of discretion," was correct, and constitutes yet another independent ground for affirming the Board's decision.
The Licensing Board held that factors (i), (iii), and (v) weighed against MAG's motions." As to the first factor, good cause for late filing, MAG simply adverts to his earlier arguments as to timeliness." For the reasons discussed in -
Section II above, MAG is wrong." Having failed to show good l
" LBP-90-1 at 36.
Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2) , ALAB-918, 29 NRC 473, 482 (1989)
[ hereinafter referred to as "ALAB-918" and cited to 29 NRC). As this Board went on to note "To establish that the Licensing Board transgressed that standard, the intervenors have a heavy burden on appeal. It is insufficient for them to'show merely that the Board below might legitimately have determined that the five lateness factors weighed in favor of admitting the contention; rather, they must demonstrate that a reasonable mind could reach no other result.".
Id. (emphasis added). .
l Id. at 31-36.
1Dt. Br. at 40.
" Moreover, the Licensing Board noted that, even if the first factor had weighed in MAG's favor, the motions should have been rejected on the basis of factors (iii) and (v). LBP-90-1 at.
f.
cause for late filing, MAG accordingly was required to "make a comoellina showing on the other four factors.""*
With respect to the third factor, contribution to !
development of a sound record, MAG asserts that "[t]he Board improperly rejected the EBS contention based upon a premature determination of the merits of the factual issues that the i contention sought to present."n2 This claim is false. The Board
- weighed this factor against MAG because it found that one of MAG's proffered witnesses, Mr. Boulay, "has not revealed an expertise respecting the SPMc or the technical aspects of the broadcast system,""2 and that the other, Mr. Kelsey " offers little prospect for a contribution to any reopened record" ;
because "[h)is views on the listenership of Station WLYT (very small) has been long conceded by Applicants" and are "hardly material to the public alerting scheme which does not depend upon normal listenership of the respective radio stations.""* There was no error as to factor (iii). '
As to the fifth factor, broadening or delay, MAG claims that the only foundation underlying the Licensing Board's holding was "a representation of the Intervenors in the EBS motion of !
l 32-33. )
1 ALAB-918 at 484 (emphasis in original).
l "1
Int. Br. at 41.
l "2 '
LBP-90-1 at 35.
Id. at 36.
l
g-
~
's i I [
n .
s November 9 that a further filing was referenced as expected.""'
Here'again MAG misstates what the Licensing Board actually said.
The Board pointed to three sources of delay: the new basis mentioned by MAG;"5 MAG's additional statement that yet other issues would be raised;"' and discovery delay."' The Licensing
- Board's finding had ample foundation. Moreover, it should be 1- noted that delay or broadening are in the disjunctive, and that there is no question but that admission of MAG's contention would i have broadened the issues. The Licensing Board did not err as to factor (v).
- CONCLUSION For each of the reasons stated above, the decision of the Licensing Board should be affirmed.
Respectfully submitted, t
P / Zed fh6' mis G. Dignan, Jr.
George H. Lewald Jeffrey P. Trout Jay Bradford Smith Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Int. Dr. at 41.
"8 LBP-90-1 at 33 and n.60.
Id. at 33-34 and n.61. i Id. at 33-34.
' ~
F l l
+ "I ATTACHMENT A N5v0mb?r 17, 1989 !
f ,
. STATEMENT OF ROYCE N. SAWYER RE: NEW HAMPSHIRE .ANKEE During the latter part of October , 1989, I was contacted by Ms. Leslie Greer of the Massachusetts Attorney General's (AG) office.
Ms. Greer forwarded to me a copy of an affidavit relative to New Hamp-shire Yankee (NHY) and NHY's commitment to the Massachusetts Emergency l Broadcast System (EES).
During the period from October 22, 1989 to November 3, 1989, I was absent from the Civil Defense Agency due to surgery and subsequent i e
recuperation. During that period of recuperation, I was contacted by the AG's office and requested to sign the aforementioned affidavit and {
return it to the AG's office.
On November 3, 1989, I met with Leslie Greer at the Civil Defense Agency and requested that the State Director, Mr. Robert J. Boulay, be present. Ms. Greer insisted that the document be signed that day by myself as I was considered to be the most knowledgeable person in the ,
Civil Defense Agency on the Ma'ssachusetts EBS. I indicated to Ms. Greer that if the document was to be correct there were several changes to be made in the wording, however, I was informed that the changes would not ,
affect the original intent of the document. Two hand corrections were made on the affidavit at that time but there were other changes brought to Ms. Greer's attention and not included.
Although I was shown documents on November 3,1989, that indicated certain equipment had not been supplied to the radio station WCGY by NHY and that as a result WCGY was removing itself from the EBS system, I had ,
not been involved for a period of more than two years with any planning 4
objectives by NHY. Instructions to this agency and passed down by the State Director to all employees informed us to refrain from participating 1-
p ~
I, **
3
- Or communicating with NHY in regard to the Seabrook Nuclear Power Plant.
Under pressure from Ms. Greer that a deadline had to be met, 1 eigned the dffidavit on November 3, 1989.
During the weekend of November 4 and 5, 1989, I had time to review the affidavit and to assimilate the information contained in letters con-cerning WCGY and NHY. For the most part, the information contained in the affidavit is correct according to my knowledge, that is, how the EBS system operates in Massachusetts. Information unknown to this agency due to the
" hands off" policy may alter or significantly affect plans and equipment in support of notification procedures. Furthermore, the existing dedicated communications systems now in place between the NHY, Civil Defense and WROR does provide a path into the EBS system in the Merrimac Valley area.
My concerns with the affidavit of November 3, 1989 were outlined in detail in a memorandum to the State Director on November 6, 1989 (copy attached) and I requested in that memorandum that the document be recalled.
After careful review on November 7, 1989, I outlined changes that I wished to have made in the affidavit, and, should they be accepted, I would then feel comfortable with the document. However, the AG's office would not consider the changes and my name was removed from the document and the name of the State Director was substituted. I was informed by telephone on November 7, 1989, by Mr. John Traficonto of the AG's office, that my signed document would not be submitted.
The foregoing is true and' correct to the best of my knowledge and belief.
I 95 ke '
l r
y -
V l Royce N. Sawyer l . - . . - _ _ _ _ _ - _ _ - . _-
' ' ~ ~ ~ ' -~ ' ' ~ ' - ~
r.
.j h ~b o THE C^CMONISALTH OF MAttA0HUSETTS ;
tesovtwo espanteser
' j enn espouse asse, aae evene eumaaner wwwesem '
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- J ':":" , -
1 eH0eutL S. DURA 006 Rostav J. soVLAY esseausa esecten DATE: November 6, 1989 TO - Robert J. Boula
. FRON: Royce N. Sawye
SUBJECT:
Affidavit for Seabrook ,
i On November 3, 1989, I signed an affidavit in the matter of f' Public Servlee Company of New Hampshire. As you may recall, Director, at that meeting 1 stated that the document should have been signed by management or the Director of the planning group. i I further stated that I have not been involved in the planning i process for New Hampshire Yankee. Furthermore, in that regard, ;
this agency has not been authorized to participate in planning for public safety with New Hampshire Yankee.
I am particularly concerned with the' statement in paragraph i 3 of that affidavit which states "The import of WCGY voiding its ;
prior letter of agreement with NHY and withdrawing f rom partici- i pating in the emergency planning means that the EBS for the Merri- l mac Valley operational area cannot be activated by NHY as called ;
for in the SPHC." 'I am also concerned with the wording in para-
- graph 4 that states "there does not exist any provision for insur-ing that notification is made to the public in the Massachusetts emergency planning zone for seabrook station within the 15 minutes -
required by HUREG 0654, FEMA-REP-1, Revision 1 Appendix 3." (
, Because I land the agency) have not been authorized to plan j with New Hampshire Yankee, this agency does not havo informa-tion relative to emergency communications f rom New Hampshire Yan-kee to radio stations in Massachusetts.
Due to recent surgery and my absence from the agency, I have not had ample time to review the af fidavit at length with either yourself or the planning group.-
- After careful deliberation, I must state that I am not in
. compl ete agreement with the referenced statements in paragraphs !
3 and 4 and that there may be equipment in place to activate an Ess radio station in the Merrimac Valley operational area by New Hampshire Yankee.. Furthermore, Massachusetts Civil Defense, if '
notified by New Hampshire Yankee of an incident affecting public safety, could activate the Emergency Broadcast system from this agency's headquarters.
G r , - ~ , - -- --,-- -: -- - . - - - - - - - - - -_ _ - - . _ . - - - - - - - _ _ _ _ _ - - - - - -
t . j?
Director 3;ulcy Nov:mber 6, 1989 PCg") 2 g .
6 1 request that this agency recall the affidavit and that i .l legal counsel be retained prior to the execution of this ilocument.
In summary, I believe that I was pressured into signing of the affidavit without that legal advice and to meet a deadline imposed by the Attorney General's office.
I t
4 S
4
- 4 i
11
V ..- '
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'S .
, l' THE COMMONWEALTH OF MAtsACHUSETTS 4
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auseviews espaniment f .
k '"' " "$."J'a"o".',E " "
,-.i "L".... ,
(s')/
l eMatt s. punAnts moesmiJ.,s00 !
esse em LAY eavesuson i 1
DATE ' November 7, 1989 !
TO: Robert J. Boulay t
FROM: Royce N. Sawyer -
SUBJECT:
Affidavit for Seabrook i If.I am to sign the affidavit presented by Leslie Greer, !
November 7, 1989, through the Attorney General's office, I re unst the following changes:
j
- 1. Page 2'11ne 17 and 18 should read:
" local operational area basis may be made by directly l contacting the operationel area's primary" -
j
.2. Page 3 line 2 should read: I 4
" signal followed by the informational message to the adjacent operational" Y l l
- 3. Page 3 lind 5 should read: h
'N "in the adjacent local operational areas and
-are tuned to WROR. There are" I.,
- 4. Page 3 line 14. No exhibit 1 included with documents
- 5. Page 4 line 18 should read
" Letter of agreement with WLYT (F.H.)/WHAV (A.M.). V
[ j j
l .
WLYT,/WHAV cannot activate the" l
- 6. Page 4 line 24 and 25 should read: [
"of the public who do not happen to be listening to radio stations WilAV or WLYT. "
1 p 7. Page 5-paragraph 4 should be eliminated in its entirety.
Page 5 line 11 should read: /
N8.
i "other than through commercial phone. Commercial telephone V may" ]
se e
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, , - - . . - - . - , - , - , - - -- - - - + = ~ '-
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I State of New Eampshire ;
Rockingham se February 13, 1990 Then appeared before me the above-subscribed Royce N. Sawyer, and made oath !
that the statements set forth in the foregoing memoranda dated November 6 1989: November 7, 1989: and November 17. 1989, are true to the best of his ,
knowledge. !
t l
Sofore me, i n .
Charlie E. Beckscher Notary Public Hy Commission Empires: February 28, 1993 J
t 4
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v,-. - - _ . , , , - , . . . ~ , - _ , . . _ . _ , - . . , ,
1 ATTACHMENT B !
%nitch $tates 6aurt of Meals ;
< ,0 m oimicr oe cowa4 cmcun I
g , 8s-1763 September Term,19 8'
{
l Commonwealth of Massachusetts, New England i Coalition on Nuclear Pollution, and Seacoast Anti-Pollution League, ggggggg3 pg 1
Petitioners i
- v. 33 @R0 /1990 l
" U.S. Nuclear Regulatory Commission and the CONSTAblC3 U.DURR$
United States of America, M -!
)
Respondents j 1
Public Service Company of New P..apshire, J Intervanor BEFORE: Ruth B. Ginsburg, Williams and sentelle, Circuit Judges ORDER Upon consideration of the motions to dismiss, the response thereto and the replies; the motion for expedited review, the response thereto and reply; the motion to supplement respondents' t u opposition to motion for expedited. review and the response thereto; the motion to extend time to file a reply and the l response thereto; and the motion to defer filing the certified index to the record, it is ,
ORDERED that the motion to extend time to file a reply be granted. The Clark is directed to file the lodged documents. It L is l FUR M ORDERED that the motions to dismiss be granted.
l LBP-89-32, issued November 9, 1989, is not a final order granting or denying a license, and therefore le not independently reviewable. 133 ovstarshall Alliance v. NRC, 800 F.2d 1201, 1206 (D.C. Cir. 1986). Egg 3133 sierra club v. NRc, 825 F.2d 1356, 1362 (9th Cir. 1987); Chio citizana for Responsible Enercrv v.
HRG, 803 F.2d 258, 260-61 (6th Cir.1986), gagg. denied, 481 U.S. ;
1016 (1987). It is e
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$ itchIot$tates Court ofe%eals TH( DilTRICT Of COLUM014 CIRCUlf 'I N o. "- "2 September Term,19 8S l t
FURTWER ORDERED that the remaining motions be dismissed as !
moot.
The Clark is directed to withhold issuance of the mandate '
harain until seven days after dispotsition of any tittely petition for reheardng. 313 0.C. Cir. Rul<a 15. ,
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l ATTACHMENT C 1
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'l l UNITED STATES OF AMERICA i l .
,' 2 NOCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD j
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4 In The-Matter of ) 1 J
- _ PUBLIC SERVICE COMPANY ) 5
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5 OF NEW HAMPSHIRE, ET AL ) #50-443-OL-1
) #50-444-0L-1 Geabrook Station, ) j
. 6 {
Units,1 and 2 ) t y
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. 9 DEPOSITION OF GARY CATAPANO, a witness l
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10 called on behalf of the Commonwealth of )
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11 Massachusetts, taken pursuant to the provisions ;
.., 12 of the Federal Rules of Civil Procedure, before 1
'" 1 13 Lisa W. Starr, a Registered 14 Professional / Certified Shorthand Reporter and
. 15 Notary Public in and for the Commonwealth of
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16 Massachusetts, at the Offices of The Attorney {
17 General, One Ashburton Place, Boston, l
- 18 Massachusetts, on Thursday, November 17, 1988, 1
19 commencing at 10:00 a.m.
20
- 21 COPLEY COURT REPORTING 22 101 Tremont Street Boston, Massachusetts 02108 I,- 23 ,
(617) 423-5841
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1 APPEARANCES:
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2 ,
3 OFFICE OF THE ATTORNEY GENERAL (By: John Traficonte, Assistant Attorney ]
4 General)
- One Ashburton Place 5 Boston, Massachusetts 02108 Counsel for the Commonwealth l
- 6 i l ;
ROPES & ORAY I, 7 (By: F.athryn A. De ll ec:t and Jay 2 Ld6Ltd Smith )
Counselors at- L&W) i 8 225 Franklin F,treet l l Ucston, Massachusetts 02109 )
9 Counsel for the Public Service of New Hampshire ]
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13 l 14 ,
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19 20 21
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157 1 Q. And you formed a view that the techniques
- t 2 they have to respond are adequate?
3 A. What I felt was that there was a whole 4 range of options that they hait available to them
. 5 which could help in the event of any type of an 6 emergency affecting a large, area that was served J'
7 by their network.
6 Q. The last item was 1 plus, seven-digit 9 calls routed from Portsmouth?
I 10 A. Yes.
?,1 Q. Now, you know that there La an EBS 12 station with whom, or that has an agreement with I* 13 ORO?
14 A. Yes.
15 Q. Is it your understanding that the EBS 16 station that has signed an agreement is the same 17 'EBS station that is part of the Massachusetts 18 Emergency Broadcast System?
i 19 A. Yes.
20 Q. And it is the same?
f
_g 21 A. They are part of the emergency broadcast.
- 5 22 Q. The one the ORO has contracted with is 23 part of the Emergency Broadcast, Massachusetts
.L-5 24 Emergency Broadcast System?
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pj COPLEY COURT REPORTING ;
. . . - . . _ . . - - -- ..-.._v . . - . - . . . . - - . .~ . _ . -
-. 158 ,
E 1 A. Yes.
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2 Q. Are we talking about WLYT?
3 A. WLYT and WHAV are co-located AM and FM 4 stations.
~5 Q. I want to go back to Exhibit 1, if I 6 can. I want to take you th:ough the remaining
, 7 seven or eight places of squipment or T- '
.J 8 c otat< uni c a t ion s systems, whichever is a better D phrase to describe each of these.
10 We had some discussion on No. 5. the 11 Emergency Radio Natwork. What about No. 6, the q 12
- PSNH radio? First of all, csn you bescribe for s l 13 me what that is? I 1
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14 A. That's an evolutionary artifect.
15 1
, Q. All right, j 16 A. Actually, this is something that was
- 17 planned ior that just never got removed from this ;
l 18 checklist. And it actually exiets and it's,used, 19 but it exists in another part of the building,
- 20 and it's used for the offsite monitoring teams.
21 And I do have, during the time of an emergency, 22 the communicatio,ns coordinator has responsibility
', 23 for assisting with the repair and restoration of 24 that, should it become inoperable.
L COPLEY COURT REPORTING ,
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j EI' e
c3cKE1ED 3 USNRC CERTIFICATE OF SERVICE Sg mm 23 P4 :28 I, Thomas G. Dignan, Jr., one of the attorneys for the l
Licensees herein, hereby certify that on March 20ga99 SERElARY q made~ service of the within document by depositingfo6tii & hl"VICI' l thereof with Federal Express, prepaid, for delivery to"I , j where indicated, by depositing in the United States mail, l first class postage paid, addressed to): ]1 Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing j Appeal Panel Appeal Panel ;
t U.S. N*.3 clear Regulatory U.S. Nuclear Regulatory !
commission Commission East West Towers Building East West Towers Building l 4350 F.ast Wect Highway 4350 East West Highway '
.Bethesda, MD 20814 Bethesda, MD 20814 1
Thomas S. Mooro .
Mr. Richard R. Donovan )
J Atomic Safety and Licensing Federtsl Erergency Management
'Apesal Pan 91 Agency J.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W. 1 East Wert Tnv4:s Building Bothcll, Washington 98021-9796 I 4350 East West Highway j bethedda, MD 20814 Administrative Judge Ivan W. H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel and Licensing Board' Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 l 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F. Gary W. Holmes, Esquire Cole Holmes & Ells Atomic Safety and Licensing Board 47 Winnacunnet Road U.S. Nuclear Regulatory Commission Hampton, NH 03842 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A. Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 l
a George Dana Bisbee, Esquire Robert R. Pierce, Esquire Associate Attorney General Atomic Safety and Licensing Office of the Attorney General Board
[ 25 Capitol Street U.S. Iluclear Pegulatory L Concord, NH 03301-6397 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Mitzi A. Young, Esquire Edwin J. Reis, Esquire Diane Curran, Esquire Andrea C. Ferster, Esquire E Office of the General Counsel Harmon, Curran & Tousley U.S. Nuclear Regulatory Commission Suite 430 One White Flint North, 15th Fl. 2001 S Street, N.W.
11555 Rockville Pike Washington, DC 20009 Rockville, MD 20852 Adjudicatory File Robert A. Backus. Esquire Atomic Safety and Licensing 116 Lowell Street Board Panel Docket (2 copies) P.O. Box $16 U.S. Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Suzanne P. Egan, City Solicitor Appeal Board Lagoulis, Hill-Whilton &
U.S. Nuclear Regulatory Rotondi Commission 79 State Street Washington, DC 20555 Newburyport, MA 01950 I
Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General Department of the Attorney Department of the Attorney General Augusta, ME General
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04333 One Ashburton Place, 19th Fl.
Boston, MA 02108 Paul McEachern, Esquire Barbara J. Saint Andre, Esquire Shaines & McEachern Kopelman and Paige, P.C.
25 Maplewood Avenue P.O. Box 360 77 Franklin Street
- Boston, MA 02110 Portsmouth, NH 03801 R. Scott Hill-Whilton, Esquire Ashod N. Amirian, Esquire Lagoulis, Hill-Whilton &
Rotondi 145 South Main Street P.O. Box 38 79 State Street Bradford, MA 01835 Newburyport, MA 01950
V r a-t O'
- Senator Gordon J. Humphrey
- Senator Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack)
(Attn: Herb Boynton)
G. Paul Bollwerk, III, Chairman George Iverson, Director Atomic Safety and Licensing N.H. Office of Emergency Appeal Panel Management U;S. Nuclear Regulatory Commission _ State House Office Park South East West Towers Building 107 Pleasant Street 4350 East West Highway Concord, NH 03301 Bethesda, MD 20814 Mr. Jack Dolan Federal Emergency Management Agency Region I J.W. McCormack Post Office & 1 Courthouse Building, Room 442 l Boston, MA 02109 Thomas 6. p nan, Jr.
(*= ordinary U.S. First Class Mail.) !
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