ML20029A010
| ML20029A010 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/22/1991 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#191-11324 ALAB-942, OL, NUDOCS 9102010042 | |
| Download: ML20029A010 (7) | |
Text
.
//32f NLKliED -
UMEC
'91 ys 23 P 3 :11 January 22, 1991 i
UNITED STATES OF AMERICA.
m.,
i ' og;
- co.
before! the'
[de,[
NUCLEAR-REGULATORY COMMISSION I
In-the Matter of i
PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE, at al.
50-444-OL i
(Seabrook Station, Units 1 (Offsite Emergency and 2)
Planning and Safety Issues)
LICENBEE8' RESPONSE TO INTERVENORS' PETITION FOR REVIEW OF ALAB-942 Under date of January 8, 1991, certain Intervenors herein have filed a petition for review of a decision issued by.the Appeal Board herein denominated ALAB-94 2.1 The thrust of the petition is that the Appeal Board,-in ALAB-942, ruled that the intervenors were required, at the contention pleading stage of the so-called "SPMC Phase"2 of this proceeding, to "make an 1Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC (Dec. 21, 1990), hereafter referred to and cited as "ALAB-942."
2"SPMC Phase" refers to that portion of the Licensing Board hearings in this docket which dealt with contentions alleged with respect to (1) the Seabrook Plan for Massachusetts Communities (SPMC) which is the utility emergency plan for that portion of the Seabrook Station EPZs located within The Commonwealth of Massachusetts necessitated by the refusal of ex-Governor Michael S. Dukakis to engage in emergency planning for Seabrook Station,_
and (2) the graded exercise held in June of 1988 of both the~SPMC APPRZ942.55 9102010042 910122 PDR ADOCK 05000443
-A O
PDR tD /
j
evidentiary showing"3 that certain contentions were not raising issues which had already been litigated in the earlier so-called "NHRERP Phase"' of this proceeding.
The petition is baseless for the simple reason that the Appeal Board did not do what the Intervenors claim it did.
The Appeal Board did not hold that any " evidentiary showing" was required; rather, it held that the Intervenors were required, when challenged, to explain, i.e., plead, why, when the proffered contention on its face raised issues already litigated in the NHRERP phase, differences between the Massachusetts and New Hampshire portions of the EPZ required relitigation'of the matter.
The ruling does not purport to require the offering of evidence, admissible or otherwise; all that is required is the pleading of certain matters.
The ruling is entirely in accord with prior precedent and reason.
From time immemorial, the regulations of this agency have required that contentions be supported by an " evidentiary type" basis.5 The requirement is that the profferer of the contention plead (not prove, or even commence proving) a factual basis for the assertion made in the contention.
This is all the Appeal Board has required here.
1 l
and the New Hampshire Radiological Emergency Response Plan (NHRERP).
3 l
Petition at 2.
'See n.2 supra.
E.g., Philadelphia Electric Co._(Peach Bottom Atomic Power 5
Station, Units 2 and 3), CLI-73-10, 6 AEC 173 (1973).
1,
P
~
The ruling is sound as a matter of law and policy.
The Intervanors' argument is that because of the fortuitous circumstance that Seabrook was tried in two phases, there should be two opportunities to elicit evidence on every issue.
There is no law to this effect in commission jurisprudence.
There is no 4
reason in law or policy why, in a given proceeding, the same issue needs to be tried twice.
Indeed, as noted recently by the United States Court of Appeals by the District of Columbia circuit, the most that is imposed upon this agency by law is that no issue be precluded from litigation by everybody; there is no right in everyone to litigate a given issue or to litigate any issue twice.'
The petition should be denied.
Respectfully submitted, u-Thomas G.'#1fignan, Jr.
George H.
Lewald Kathryn Selleck Shea Jeffrey P. Trout Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Licensees a
'Unioft of Concerned Scientists v. HEQ, F.2d No. 89-1617 (Nov. 30, 1990).._
^ Y5$
CERTIFICATE OF SERVICE
.R 3d 23 P 3 '.ll I, Thomas G.
Dignan, Jr., one of the attorneys for the Licensees herein, hereby certify that on January 22,h199p,fI?m&do' service of the within document by depositing copies;thereof* WithU Federal Express, prepaid, for delivery to (or where indidated, by depositing in the United States mail, first class postage paid, addressed to) the individuals listed below:
Kenneth M.
Carr, Chairman Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission commission One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Forrest J. Remick, Commissioner James R. Curtiss, Commissioner U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission one White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Kenneth C.
Rogers, Commissioner William C.
Parler, Esquire U.S. Nuclear Regulatory General Counsel Commission Office of the General Counsel One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 G.
Paul Bollwerk, III, Chairman Mr. Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission nommission Fifth Floor Fifth Floor 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Alan S.
Rosenthal, Esquire Mr. Thomas S.
Moore Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fifth Floor Fifth Floor 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814
_ _ ~ _
)
Administrative Judge IvanLSmith Administrative Judge Kenneth A.
Chairman, Atomic Safety and McCollom Licensing Board 1107 West Knapp Street U.S. Nuclear Regulatory Stillwater, OK 74075 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F.
H. Joseph Flynn, Esquire Cole, Atomic Safety and Of.fice of General Counsel Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway Bethesda, MD-20814 i
Mr. Richard R. Donovan Diane Curran, Esquire Federal Emergency Management Andrea C.
Ferster, Esquire Agency Harmon, Curran & Tousley Federal Regional Center Suite 430 130 228th Street, S.W.
2001 S Street, N.W.
Bothell, WA 98021-9796 Washington, DC 20009 Robert R.
Pierce, Esquire John P. Arnold, Attorney General Atomic Safety and Licensing George Dana Bisbee, Associate Board Attorney General U.S.
Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street East West Towers Building Concord, NH- 03301-6397 4350 East West Highway Bethesda, MD 20814 Adjudicatory File Mitzi A. Young, Esquire Atomic Safety and Licensing Edwin.J. Reis, Esquire Board Panel Docket (2 copies)
Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852 e
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Mail Stop EWW-529 Manchester, NH 03105 Washington, DC 20555 Philip Ahrens, Esquire Suzanne P. Egan, City Solicitor Assistant Attorney General Lagoulis, Hill-Whilton &
Department of the Attorney Rotondi General 79 State Street Augusta, ME 04333 Newburyport, MA 01950 Paul McEachern, Esquire Leslie'Greer, Esquire Shaines & McEachern Matthew Brock, Esquire Maplewood Avenue Massachusetts Attorney General P.O.
Box 360 One Ashburton Place Portsmouth, NH 03801 Boston, MA 02108
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn:
Tom Durack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.
Concord, NH 03301 101 Arch Street (Attn:
Herb Boynton)
Boston, MA 02110 Ashod N. Amirian, Esquire Judith H. Hizner, Esquire 145 South Main Street 79 State Street, 2nd Floor P.O.
Box 38 Newburyport, MA 01950 Bradford, MA 01835 Gary W.-Holmes, Esquire Marjorie Nordlinger, Esquire Holmes & Ells Office of the General Counsel 47 Winnacunnet Road One White-Flint North Hampton, NH 03842 11555 Rockville Pike Rockville, MD 20852 Mr. Jack Dolan Federal Emergency Management Agency - Region I J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director __ - __
N.H. Office of Emergency Management State House Office Park South 107 Pleasant Street Concord, NH 03301
[ m>} P'T '//
OmaB G. Opn, Jr.
t l
l l
! _.