ML20029B564
| ML20029B564 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/28/1991 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#191-11483 LBP-89-38, OL, NUDOCS 9103130020 | |
| Download: ML20029B564 (7) | |
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,,,,,x NUCLEAR REGULATORY COMMISSION' nm o r
.w v7 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD-In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50 444 OL NEW HAMPSHIRE, d al.
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Off site Emergency Planning
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(Seabrook Station, Units 1 and 2)
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NRC STAFF OPPOSITION TO LICENSEES' htOTION TO DISMISS APPEAL OF LBP 89 38 INTRODUCTION On February 12,1991, the Licensees filed a motion asking that the Appeal Board dismiss Intervenors' appeal of LUP-89 38V "as either moot or on the grounds that as a matter of law, the Licensing Board was correct in denying a hearing with respect to the contentions (regarding the September 27, 1989 onsite exercise] at issue."
Licensee's Motion to Dismiss Appeal of LBP-89-38, dated February 12,1991 (" Motion"), at 4. As grounds for the motion, Licensees state that the recent decision of the United States Court of Appeals for the District of Columbia Circuit, Massachusetts v. NRC, Nos.
89-1306, 90 1132, 90 1218, F 2d
, slip op, at 46 (D.C. Cir. Jan. 25,1991), held that, "as a matter of law, the events which occurred at the [onsite] Exercise, and the
[onsite] Exercise itself are not material. matters with respect to the issuance of Seabrook's operating license" and claim that "the Intervenors had no right to a hearing on or s'te UPublic Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP49/>8, 30 NRC 725 (1989).
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exercise contentions." Motion at 12. For the reasons stated below, the Staff opposes the motion.
DISCUSSION The Staff opposes the Motion on the ground that Licensees misconstrue the language in the Court of Appeals decision by taking it out of context. The issue before the Court of Appeals was whether to grant a petition for review which alleged that "the NRC had violated [the petitioners'] statutory right to a hearing by rejecting the contention concerning the onsite weaknesses identified in the 1988 full participation exercise." Slip op, at 39. Ending that it could not determine whether the Appeal Board properly considered "the potential materiality of the allegations involved," the Court remanded the issue to the Appeal Board "for further explanation" and to consider "the materiality of the petitioners' exercise contention." Id. at 30, 45-46.
An examination of the decision and the action taken by the Court of Appeals demonstrates the error in Licensees' interpretation. As pertinent to this issue, the Court declared:
As is apparent, we disagree with the NRC and PSNH that this issue was mooted by the September 1989 exercise. of Seabrook's onsite plan.
Appendix E of the emergency planning regulations calls for a prelicense onsite drill if the full participation exercise occurs more than a year before a prelicense onsite drill if the full participation exercise occurs more than a year before full power licensing. 10 C.F.R. Part 50, Appendix E.IV.F.1, We do not believe that such an onsite exercise is intended to supersede the full participation drill, and thus we reject the NRCs contention that the onsite exercise becomes the " legal underpinning" for approval of the full pov.er license.
Slip op, at 46 (citation omitted). Licensees cite this last sentence for the proposition that the 1989 onsite exercise is not material to the issuance of Seabrook's operating license. But Licensecs' argument ignores the context of this statement. This statement
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occurs in the Court's discussion of whether the contention concerning alleged onsite weaknesses identified in the 1988 full participation exercise was mooted by the September 1989 onsite exercise. Moreover, the Court, to an extent, clarified this ruling by stating:
Although we are unwilling to conclude that the September 1989 onsite fully tested all aspects of emergency planning potentially implicated by petitioners' contention, we see nothing in the results of that exercise to indicate any ongoing flaws in staff competency. Most important, we note that Seabrook was scheduled for a second full participation exercise in December 1990. A clean record in that exercise willlikely moot this issue.
Hence, we decide against imposing an immensely disruptive interim status quo that may itself be displaced-by the Appeal Board's subsequent reasoning or by the more recent full participation exercise.
We therefore leave it to the Appeal Board to determine whether our opinion suggests any reason for altering the plant's licensing status, in particular,... the Appeal Board's ruling in ALAB 918 may bear on the Commission's decision to allow authorization of full power operations.
Because the full power license necessarily depends upon the resolution of all issues material to low power licensing, including the adequacy of the onsite emergency plan, this question merits the agency's consideration.
Slip op, at 46-47.F As these excerpts show, the Court did not conclude that an onsite exercise was immaterial to licensing. Rather, the Court stated that, on the record before the Court, it was not cominced that the September 1989 exercise of the onsite plan was of sufficient scope to moot the issues the petitioners sought to raise with respect to the onsite portion of the previous full participation exercise. Id. The Court did not go so UThe Licensees' motion is not premised upon whether results of the De_ aber 1990 full participation exercise will, when published, moot issues on appeal concerning the 1988 full participation exercise, and the Staff does not here address that issue as it is not the basis of Licensees' motion. By Order of February 22,1991 (unpublished), slip op. at 2, the Appeal Board did ask, inter alia, for the parties' views on whether the 1990 full participation exercise mooted issues involving contentions offered as a result of the earlier full participation exercise which were addressed in ALAB 918 and remanded in Massachusetts v. NRC, supra. The parties were provided until March 12,1991, to respond to that inquiry.
4 far as to conclude that onsite exercises are immaterial. Instead, the Court of Appeals recognized that a prelicense onsite exercise must be held if a full participation exercise occurs more thsn a year before full power licensing. Thus, the decision does not stand for the proposition that onsite exercises are not material to licensing and the Motion should be denied.
. CONCLUSION For the foregoing reasons, the request to dismiss the appeal of LBP-89 38 should be denied.
Respectfully submitted,
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l A f i. & M b1'd Mitz A.
'oung s
(
Senior Supewisory Trial Attorney Dated at Rockville, Maryland this 28th day of February,1991
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UNITED STATES' OF AMERICAw 4 g; ;g 29 pa,3 NUCLEAR REGULATORY { COMMISSION:'
a:n REFORE THE ATOMIC SAFETY AND LICENSING APPEMIB' ARIi["N O
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In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW HAMPSHIRE, et al
)
Off site Emergency Planning
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(Seabrook Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that opies of *NRC STAFF OPPOSITION TO LICENSEES' MOTION TO DISMISS APPEAL OF LBP-89 38" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or, as indicated by double asterisks, by express mail, this 28th day of February 1991:
Ivan W. Smith, Chairman (2)*
Thomas G. Dignan, Jr., Esq."
A_dministrative Judge Robert K. Gad, Ill, Esq.
. Atomic Safety.and Licensing Ropes & Gray
- Board One International Place U.S. Nuclear Regulatory Boston, MA 02110 2624 Commission Washington, DCf 20555 Peter Brann, Esq.
Assistant' Attorney General Richard F. Cole' Office of the Attorney General
--Administrative Judge State House Station 6 Atomic Safety and Licensing Augusta, ME 04333 Board U.S. Nuclear Regulatory Diane Curran, Esq."
Commission -
Harmon, Curran & Tousley Washington, DC 20555 2001 S Street, NW Suite 430
- Kenneth A. McCollom" Washington, DC 20009 Administrative Judge L
1107 West Knapp Street Stillwater, OK 74705 L
I q i Scott Harshbarger" R. Scott Hill Whilton, Esq.
Leslie Greer
.Lagoulis, Hill.Whilton Matth'ew Brock
& Rotondi Massachusetts Attorney General 79 State Street One Ashburton Place,19th Floor Newburyport, MA _ 01950 Boston, MA 02108 Allen Lampert John P. Arnold, Attorney General" Civil Defense Director-George. Dana Bisbec Town of Brentwood
. Associate Attorney General 20 Franklin Street Attorney General's Office Exeter, NH 03833 m
.25 Capitol Street Concord, NH 03301 William Armstrong Civil Defense Director Robert A; Backus, Esq.
Town of Exeter Backus, Meyer- & Solomon 10 Front Street 116 Lowell Street Exeter, NH 03833
^
. Manchester, NH 03106 4
Gary W. Holmes, Esq.
HJ. Flynn, Es'q.
Holmes & Ellis
- Assistant General Counsel 47 Winnaeunnet Road Federal Emergency Management Harnpton, NH 03842 Agency
.500 C Street, SW Barbara J, Saint Andr6, Esq.
' Washington,' DC 204.72 Kopelman and Paige, P.C.
Counsel for Amesbury, Jack Dolan Newburyport & Salisbury
- Federal E.aergency Management 101 Arch Street
._ Agency Boston, hiA 02110 -
. Region -I
'J.W. -McCormack Post Office &
Judith H.- Mizner, Esq.
Courthouse Building, Roorn 442 Counsel for. West Newbury Boston,- MA 02109 79 State Street
-Newburyport, MA 01950 Paul _ McEachern, Esq._
Shaines & McEachern Robert Carrigg, Chairman e
225)Maplewood. Avenue Board of Selectmen P.O. Box 360 mi Office:
- Portimouth, NH 03801 Atlantic-Avenue O
North Hampton, NH 03862 L
~ George Hahn, Esq.
L*
. Attorney for the Examiner Mrs. Anne E. Goodman, Chairman E
2Hahn & Hesson-Board of Selectmen 350 5th Ave., Suite 3700 1315 Newmarket Road New York,--NY 10118-Durham, NH 03824 l-i N..
- - Richard R. Donovan Jane Doherty, Director Federal Emergency Management -
Seacoast Anti Pollotion League
- Agency 5 Market Stret Federal Regional Center Portsmouth, hrl 03801 130 228th Street, SW.
Bothell, WA 98021 9796 Michael C. Sinclair Graystone Emergency Management Peter J. Matthews, Mayor Associates City Hall 13 Summer Street Newburyport, MA 01950 Hillsboro, NH 03244
. Michael Santosuosso, Chairman Robert R. Pierce, Esq.*
Board of Selectmen Atomic Safety and Licensing South Hampton, NH - 03827 Board Panel U.S. Nuclear Regulatory Ashod N. Amirian, Esq.
Commission Town Counsel for Merrimac Washington, DC 20555 1145 South Main Street P.Oc Box 38 Atomic Safety and Licensing Bradford, MA 01835 Appeal Panel (6)'
U.S. Nuclear Regulatory Suzanne Breiseth Commission Board of Selectmen Washington, DC 20555
('
Town of Hampton Falls Drinkwater Road Atomic Safety and Licensing i
'Hampton Falls, NH 03844 Board Panel (1)'
U.S. Nuclear Regulatory
- George'Iverson, Director Commission -
NH Office of Emergency Washington, DC 20555 Management
- State House Office Park South Office of the' Secretary (2)*
107 Pleasant Street U.S. Nuclear Regulatory Concord, -NH 03301 Commission.
Washington, DC. ~e0555 Attn: Docketing and Service Section 6htzh rig' Senior Supervisory Trial-Attorney
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