ML20012E755
| ML20012E755 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/02/1990 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#290-10184 ALAB-930, OL-1, NUDOCS 9004060246 | |
| Download: ML20012E755 (12) | |
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-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ~
-,90 AMt -3 R2:15 ATOMIC SAFETY AND LICENSING APPEAL BOA 5b
, rnce s:
-Administrative Judges:
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I Alan S. Rosenthal, Chairman April 2, 1990 Thomas S. Moore (ALAB-930)
-Howard A. Wilber
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SERVED APR 0 3 1990 In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL-1 i
NEW HAMPSHIRE, at al.
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50-444-OL-1 L
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(Rosemount Transmitters)
Seabrook Station, Units 1
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and 2)
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Diane Curran, Washington, D.C.,
for the intervenors New England Coalition on Nuclear Pollution, 31 al.
Thomas G.
Dianan. Jr.,
Georce H.
Lewald, Kathryn A.
Selleck, and Jef frev P.
Trou,1, Boston, Massachusetts, for the applicants Public Service company of New Hampshire, gt al.
Charles A.
Barth for the Muclear Regulatory Commission Staff.
MEMORANDUM AND ORDER Before us in this operating license proceeding involving the Seabrook nuclear facility is the February 27, 1990, Intervenors' Motion to Reopen the Record and Admit Late-Filed Contention Regarding Defective Rosemount Transmitters.
The motion is opposed by the applicants and the NRC staff on the ground that, inter glia, we lack jurisdiction to entertain it on the merits.
We disagree a
with that proposition but further conclude that the motion
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9004060246 900402 PDR ADOCK 05000443 o
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2 should be referred to the Commission for such action as it deems appropriate.
1.
By their reopening motion, the intervenors would inject into the proceeding at this late date the following contention:
Applicants do not satisfy the Commission's standards for domestic licensing of production and utilization facilities because Applicants have not taken adequate measures to assure that Rosemount Transmitters will not cause, contribute to, or fail to operate during, an accident at Seabrook Station.
10 CFR S 50.34(b); 5 50. 34 (f) (3) ;
5 50.36(c)(3); 5 50.49; 5 50.55a(h); $ 50.57; 5 50.71(e); Part 50 Appendix A, General Design Criteria 13, 20 and 21; and Appendix B II, VII, X,
XI, XIV, XV and XVI.
According to the motion, the transmitters in question are used to measure pressure and differential pressure in nuclear power plant safety systems.
The motion further recites that a recent NRC issuance both confirmed that a previously reported failure of certain models was caused by a loss of fill-oil from the transmitter's sealed sensing module, and indicated that there had been more failure instances than those already on record.
In short, the intervenors seek to raise a new issue directed to the safety of plant operation.
But no Appeal Board still has any issues of that stripe under merits consideration in connection with any pending appeal.
To the contrary, the last such issue coming to us on the merits --
concerned with the environmental qualification of coaxial cable used for data transmission in Seabrook's computer
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3 system.and certain other purposes -- received our final word over a year ago.'
All issues that' remain for our disposition on the merits pertain to the adequacy of emergency response planning for areas within the Seabrook plume' exposure pathway emergency planning zone.2 In these circumstances, intervenors are confronted with the well-settled principle, enunciated over a decade ago in the North Anna proceeding, that, where " finality has attached to some but not all issues, appeal board jurisdiction to entertain new matters is dependent upon the existence of a ' reasonable nexus' between those matters and the issues remaining before the board."3 To be sure,
" reasonable nexus" does not mean a " total identity or commonality of issues" but, rather, has reference simply to "a rational and direct link."'
Manifestly, however, there I See ALAB-909, 29 NRC 1 (1989).
2 There is pending an appeal by these intervenors from the Licensing Board's denial of a motion to reopen the record to permit the litigation of. contentions growing out of. low-power testing at Seabrook.
See LBP-89-28, 30 NRC 271 (1989).
Although those contentions assertedly bear upon the conduct of full-power operation, unless and until admitted to the proceeding they do not give rise to a safety matter in controversy.
3 Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 707 (1979).
' Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-797, 21 NRC 6, 8 (1985); Florida Power and Licht Co. (St. Lucie Nuclear Power Plant, Unit No.
2), ALAB-579, 11 NRC 223, 226 (1980).
Accord Lona Island Lichtinc co. (Shoreham Nuclear Power Station, Unit 1),
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is no tie whatever between one or more of the emergency-planning; issues still awaiting appeal board action and any questions associated with the possible failure of the Rosemount transmitters.
2.
In a supplemental filing solicited by us, the intervenors acknowledge that their motion does not satisfy the " reasonable nexus" test.
We are told, however, that our decisions invoking that test should be reconsidered.
On that score, the intervenors maintain that application of-the-l test would " unfairly deprive" the Commission's-Rule of 5
l Practice concerned with the reopening of closed records ' "of any meaningful utility where intervenors discover new l
information relevant to the safety of full power operation. "6 There might well be merit to that concern if the necessary consequence of the failure to satisfy the
" reasonable nexus" test were that D2 tribunal within the Commission is free to consider a reopening request in an adjudicatory context.
But such is'not the effect of our conclusion that the test has not been met here.
The Commission's regulations appear to confer a
'(... continued)
ALAB-901, 28 NRC 302, 306, review declined, CLI-88-11, 28 NRC 603 (1988).
5 10 C.F.R. 5 2.734.
6 Intervenors' Supplemental Motion Addressing Appeal Board's Jurisdiction (March 7, 1990) at 3.
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fundamental right to seek a reopening of the record of an adjudicatory proceeding on any issue germane to the outcome i
of-the proceeding so:long as the final curtain on the i
proceeding has not fallen.'
For its part, the " reasonable i
nexus" test does not, as it cannot, affect that right;-i.e.,
i it does not preclude an intervenor from advancing a new i
contention said to arise from recent developments.of safety significance.a -Rath,er, the function of that test.here is merely to ascertain the appropriate forum to entertain gh initio the intervenors' claim that they have satisfied the 10 C.F.R.
S 2.734 reopening requirements insofar as the i
Rosemount transmitter matter is concerned.'
l 7 See 10 C.F.R. 5 2.734 and Commission statement accompanying the promulgation of that section, 51 Fed. Reg.
19,535 (1986).
See also Vermont Yankee Nuclear Power Coro.
(Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973), cited by the Commission in concluding (51 Fed.
Reg. at 19,536) that it should not impose en " arbitrary cutoff point" on reopening motions.
As a general matter, in order to obtain such relief, the litigant must meet the reopening standards set forth-in section 2.734.
See infra note.9.
8 Nor can that right be curtailed because, for reasons of administrative convenience and efficiency, this proceeding was divided into two segments:
one part covering the safety and onsite emergency planning issues, the other part encompassing offsite emergency planning issues.
Such a separation, and the assignment of differently constituted licensing boards to the two parts, does not alter the fact that-there is but one proceeding that has not as yet been completed.
' That section provides (in subsection (a)) that a motion to reopen a closed record will not be granted unless the following criteria are satisfied:
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(continued...)
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6 In short,.despite our use of the term " jurisdiction" in i
connection with the formulation of the " reasonable nexus" test in North Anna and its progeny, strictly speaking it is not a matter of our authority (i.e., power) to act on a particular motion to reopen a-record to introduce a new contention.
It is, instead, a matter akin to venue -- the inquiry being where, given the subject of the contention and the then status of the proceeding, the motion is best considered initially.
The reasons that undergird our conclusion that, in the present circumstances, we should not initially address this
-motion are equally applicable to the Licensing Board:
it likewise has no issue.cn1 its platter having the requisite
" rational and direct link" to the substance of the intervenors' new contention.
That leaves the Commission.
l itself.
'(... continued)
(1)
The motion must be. timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.
4 (2)
The motion most address a significant safety or environmental issue..
i (3)
The motion must demonstrate.that a materially different result would be or would-have been likely had the newly proffered evidence been considered initially.
In addition, if (as here) the purpose of the motion is to put an entirely new contention into litigation, subsection (d) obliges the movant to satisfy the requirements for nontimely contentions set forth in 10 C.F.R.
$ 2. 714 (a) (1).
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7 It is true that, in common with its adjudicatory
-boards, the Commission has=already dispatched the last of the issues pertaining to the safety of plant operation that had been placed in controversy.
Nonetheless, it is the tribunal that has had the most recent contact with safety issues (on review of our decision concerned with the environmental qualification of the coaxial cable).
Moreover, it'is reasonable to assume that the Commission, in s
its role as the ultimate overseer of this extended proceeding, is interested in how the motion is handled.
For example, it might decide the motion itself and, if granted, then call upon the Licensing Board to address the merits of 1
the contention upon. reopening of the record.
Alternatively, the Commission might direct the Licensing Board or this i
Board to act on the motion in the first instance.
No matter which course the Commission chooses to adopt, the
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intervenors will have had their opportunity to demonstrate that there is sufficient warrant for reopening under the section 2.734 standards.
That is all to which they are entitled.
For the foregoing reasons, the intervenors' February 27, 1990, motion to reopen the record is referred to the Commission."
" We have been advised by the intervenors that they served copies of the motion on the Commission on February 28.
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-It-is-so ORDERED.
FOR THE APPEAL BOARD
,b 2__J.._ a j,
A.J Barbara A. Tompkins.
Secretary to the i
Appeal Board i
Mr. Moore, dissenting
- I disagree with my colleagues' decision to refer the intervenors' reopening motion to the Commission.
Although I fully agree with the majority's disavowal of the fallacious notion contained in several Appeal Board opinions that we
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. lack jurisdiction to entertain reopening motions in the f
circumstances presented, I must disagree with the majority's labeling exercise designed to reach the same erroneous i
i result.
I'have spelled out previously why the notion that we lack jurisdiction in similar circumstances is patently wrong, so I will not waste ink repeating that discussion here.
See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-782, 20 HRC 838, 842a-42h (1984) (Moore, dissenting).
See also Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 n.12 (1973).
It suffices to note that when the intervenors filed their reopening motion, we had pending, inter alia, their appeal from the l
Licensing Board's decision authorizing a full-power l.
operating license for the Seabrook facility.
Thus, the 1
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mmotion was filed properly with us.
If we have jurisdiction to entertain'the motion as the majority now correctly concedes, then we should decide it and not eschew the task of deciding whether the reopening motion meets the criteria of-10 C.F.R.
5 2.734.
We should not, as-the majority does here, repackage the identical erroneous jurisdictional test and its mistaken decisional roots under a'new label that.
also has no basis in the regulations.
Because I am in the minority on the referral question, my-determination of whether the intervenors' motion meets the standards of section 2.734 for reopening the record would be.an academic exercise.
Accordingly, I will not undertake the task.
i i
i UNITED STATES OF AMERICA NUCLEAR RE6ULATORY' COMMISSION P
in the Matter ~of I
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PUBLIC SERVICE COMPANY OF NEW l
Docket No.(s) 50-443/444-OL-1 HAMPSHIRE. ET AL.
I (Seabrook Station, Units 1 and 2) i l
i CERT!FICATE OF SERVICE I hereby certify that copies of the foregoing AB M60 (ALAB-9301 DTD 4/2 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Administrative Judge Alan S. Rosenthal, Chairman Thomas S. Moore Atomic Saf ety' and Licensing Aopeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington. DC 20555 Administrative Judge Howard A. Wilber Administrative Judge Atomic Safety and Licensing Appeal Peter B.'Bloch, Chairman Board Atomic Safety and Licensing Board
)
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington. DC. 20555 l
Administrative Judoe Administrative Law Judce Jerrv-Harbour Ivan W.
Smith Atomic Safety and Licensing Boarc Atomic Safety and Licensing Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 4
Administrative Judge Edwin J. Reis, Esa, Emmeth A. Luebke Office of the General Counsel 5500 Friendship Boulevard. Apt. 1923N U.S. Nuclear Roguistory Commission i
Chevy Chase, MD 20015 Washington, DC' 20555 Diane Curran, Esc.
Thomas S. Dignan, Jr.. Esc.
Harmon, Curran & Tousley Ropes & Gray i
2001 S Street, N.W.. Suite 430 Or,e International Place 1
Washington, DC 20009 Boston, MA 02110 l
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Docket-No.(s)90-443/444-OL-1~'
- AB M60-(ALAB-930) DTD 4/2 l
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Robert A. Backus Esq.
Paul McEachern, Esc.
Backus, Meyer & Solomon Shatnes & McEachern J
116 Lowell Street 25 Maplewood Avenue. P.O.-Box 360 Manchester, NH 03106 Portsmouth, NH 03801 Gary W. Holmes, Esq.
Barton Z. Cowan, Esq.
Holmes & Ells Eckert, Seamans, Cherin & Mellett i
47 Winnacunnet Road 600 Grant Street, 42 Floor Hampton, NH 03842 Pittsburgh, PA 15219
' Jane
.Douchty George W. Watson Esc.
- Seacoast Anti-Pollution Leaoue Federal Emergency Management Agency 5 Market. Street 500 C Street, S.W.
Portsmouth. NH 03801 Washington, DC 20472 Edward A. Thomas Beorge D. Bisbee, Esc.
Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (PDCH)
Off6ce of the Attorney General Boston.-MA' 02109 25 Capitol Street Concord, NH 03301
- Suzanne Bretseth John Traficonte, Esc.
Board of Selectmen Chief. Nuclear Safety Unit Town of-Hampton Falls Office of the Attorney General Drinkwater Road One Ashburton Place, 19th Floor Hampton Falls. NH 03844 Boston, MA- 02108 Matthew T. Brock.- Eso.
Philip Ahrens Esc.
Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General One:Ashburton Place, 19th Floor State House Station, #6 Boston, MA 02108 Augusta, NE 04333 l
Allen Lampert William Armstrong Civil ~ Defense Director Civil Defense Director Town of Brentwood Town of Exeter 20 Franklin Street 10 Front Street Exeter. NH 03833 Exeter, NH 03B33
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Docket.No.(e)50-443/444-OL-1
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'AB M60-(ALAB-930) DTD 4/2-9)
Anne Goodmani Chairman Board of' Selectmen-Board of Selectmen 13-15 Newmarket Road Town Hall - Friend Street I
.Durham, NH 03B24' Asesbury, MA 01913'.
Peter J. Matthews Mayor of Newburyport.
Michael Santosuosso, Chairman 1
City Hall-
-Board of Selectmen Newburyport, MA 01950 South Hampton, NH 03B27 i
R. Scott Hill-Whilten. Esquire Stanley W. Knowles, Chairman
.l Lagoulis. Hill-Whilton & McGuire Board of Selectmen 79 State Street P.O. Box 710 NewburYport., MA 01950 North'Hamoton. NH 03862 l
The Honorable-
'Bordon J. Humphrey
' ATTN Janet Colt United States Senate Washington, DC 20510 Dated at Rockville. Md. this g
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3 day of April 1990
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Office tf the Secretary of the Commission l
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