ML20033F124
| ML20033F124 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/05/1990 |
| From: | Lisa Clark NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-10018 LBP-89-32, LBP-89-38, OL, NUDOCS 9003160062 | |
| Download: ML20033F124 (35) | |
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3 000 METED USNRC UNITED STATES OF AMERICA
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. NUCLEAR REGULATORY COMMIS$10N (4f,ICKEI$I M' EI'VICL hCE OF SECRETARY BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
,In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL
.NEW HAMPSHIRE, et al.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
)
L i
t NRC STAFF'S BRIEF IN OPPOSITION TO INTERVENORS' APPEAL OF LBP-89-38 6
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Lisa B. Clark Counsel for NRC Staff March 5, 1990 4
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TABLE OF CONTENTS 1
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' TABL E OF AUTHOR I T I ES.............................................
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INTRODUCTION.....................................................
1-BACKGROUND.......................................................
1 STATEME NT OF I S SU ES..............................................
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ARGUMENT.........................................................
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I'. ' Jurisdiction over LBP-89-38 lies with this Appeal Board.......................................................
10 II. The Licensing Board Correctly Decided That Intervenors' Contentions Had To Allege That The Exercise Revealed a fl
' Fundamental Flaw or That The Scope of the Exercise Was Too l
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Limited to Reveal the Presence of a Fundamental Flaw........
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h III. The Licensing Board Correctly Ruled That The Reopening Standards Apply To Intervenors' Onsite Contentions..........
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L IV. The Licensing Board Correctly Found That Intervenors' Motions-Did Not Meet the Reopening Standards of 10 C. F. R. 6 2. 7 3 4...........................................
17 V.
The Licensing Board Was Correct in Concluding That l
The Principal Purpose of the Within-One-Year Onsite
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l Exercise is To Assure Training and Competency...............
18 VI. The Board Did Not Err in Finding Intervenors's Motions L a t e F 1 1 e d..................................................
21 VII. The Licensing Board Correctly Ruled That Onsite Exercises Are Not Required To Be Full Participation Exercises as Defined in 10 C.F.R. Part 50, Appendix E Section IV.F.1...............
22 CONCLUSION.......................................................
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TABLE OF AUTHORITIES COURT CASES
'ICC v. Jersy City 322 U.S. 503 (1974)..........................
16 P'
Oystershell Alliance v. NRC, 800 F.2d 1201
( D. C. C i r. 19 8 6 )................................................. 16 1 San Luis Obispo Mothers for Peace v.- NRC, '151 F.2d 1287, reaffirmed upon reh'g(en banc, 789 F.-2d 26 (1986); cert,1986).....................................
13,15,16,35 denied, 479 U.S. 923 Union of Concerned Scientists.v. NRC, 824 F. 2d. 108 ( D. C. Ci r. ' 1987 ).................................. 13,14 ADMINISTRATIVE DECISIONS Carolina Light & Power Co. (Shearon Harris Nuclear Power Plant),ALAB-852,24NRC532(1986).............................9 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),ALAB-E37,23.NRC525(1986).............................8 Consolidated Edison Co. (Indian Point Units 1,2, and 3)
ALAB-319, 3 NRC 188 (1976)......................................
9 Consumers Power Co. (Midland Plant, Units 1 and 2).
ALAB-691, 16 NRC 897 (1982).....................................
11 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-825,22NRC785(1985).....................................9 Kansas Gas &' Electric Co. (Wolf Creek Generating Station, Uni t 1), ALAB-462, 7 NRC 320 (1978)............................. 17.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-89-1, 29 NRC 89 (1986).............................
16 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),CLI-86-11,23NRC577(1986)...........................11 Long Island Lighting Co. (Shoreham Nuclear Power Station,
-Unit 1), ALAB-903, 28 NRC 499 (1988)............................
11 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275 (1988)............................
11.24 Public Service Co. of Indiana (Marble Hill Nuclear Generating (Station, Units 1 & 2), ALAB-316, 3 NRC 167 19 7 6 )................................................ 9
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Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC (Ma rch 1,' 1990)............ 4,10. 22 Public Service Co. of New Hampshire'(Seabrook Station.
Units 1 and 2), CLI-89-19, 30 NRC 171(1989)..................... 2,11,12 Public Service Co. of New Hampshire (Seabrook Station, Units-1 and 2), ALAB-915,_29 NRC 427 (1989).....................
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Public Service Co. of New Hampshire (Seabrook Station,
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-Units 1 and 2) ALAB-910, 29 NRC 95 (1989)......................
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- Public Service Co. of New Hampshire (Seabrook Station, Units.1: and 2), ALAB-875 ' 26 NRC 251 (1987)..................... 14 l
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~Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-38,.30 NRC (December -, 1989)........ passim Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-33, 30 NRC,___(November 20,1989)......... passim Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-99-32, 30 NRC,___(November 9, 1989)......... 4.10 South Carolina Electic & Gas Co. (Virgil C. Sumner Nuclear Station, Unit 1), ALAB-710, 17 NRC 25 (1983)....................
14 STATUTES r
Atomic Energy Act Section 189(a), 42 USC K 2239(a)............. 14,15 REGULATIONS 10 C FR 6 2. 2 0 6................................................... 14 10 C F R 9 2. 714................................................... 2, 21 10 C FR 6 2. 714 ( a ) ( 1 )............................................. 6 l
10 C FR 6 2. 714 ( b )................................................ 12 10 C FR 6 2. 73 4.................................................... pa s s i m 10 C F R 9 2. 7 6 4 ( g )................................................ 10 10 C FR 6 2. 7 8 5................................................... 14 10 C F R 5 5 0. 4 7 ( b )................................................ 5,12 t
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I 10 CFR,_Part 50, Appendix E.IV.F.1............................... passim 10 CFR, Part 50 Appendix E.IV.F.2............................... 20 MISCELLANEOUS-
' Statement of Policy on Conduct of Licensing Proceedings CL I-81-8, 13 NRC 4 52 (1981 )..................................... 9 3
52 Fed. Reg. 16823 (May 6, 1987).-Final Rule.. Timing _
Requirements for Full Participation Emergency Preparedness Exercises for Power Reactors Prior to Receipt of an Operating License................................. 20,25,26 51; Fed. Reg. 19539 (May 30, 1986). Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings...........15 49 Fed. Reg. 27733'(July 6, 1984), Emergency Planning a n d. P re pa red ne s s................................................ 24,2 5 48' Fed.. Reg.33307(July 21,-1983), Emergency Planning and Preparedness for Production and Utilization Facilities, Frequency of and Participation in Exerci ses..................... 24,25 '
45-Fed. Reg.55402(August 19, 1980)............................
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-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
'In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY'0F 50-444 OL NEW HAMPSHIRE, ej al.
)
Off-site Emergency Planning-
.(Seabrook Station, Units 1 and 2)
Introduction The NRC Staff submits this brief in opposition to Intervenors' appeal ofLBP-89-38.1/ In that decision the Licensing Board denied motions to reopen the record to litigate the scope of a September 1989 onsite emergency plan exercise.
For the reasons set forth below, the Staff believes that the decision of the Licensing Board should be affirmed.
Background
During June 1988, Applicants conducted a full participation exercise of the the Seabrook radiological emergency response plans. By the end of the ensuing year, however, an operating license for that plant had yet to issue. Accordingly. Applicants were required to conduct an-exercise of the onsite plan under 10 C.F.R. Part 50, Appendix E.IV.F.1 which provides -
in part that:
If the full participation exercise is conducted more than one year prior to issuance of an operating licensee for full power, an exercise which tests the licensee's onsite emergency 1/
Brief of Intervenors in Support of Their Appeal of LBP-89-38
("Brief"), January 22, 1990.
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plans shall be conducted within one year before issuance of an operating license for full power.
After unsuccessfully applying for an exemption from that requirement, M j
Applicants conducted an onsite exercise on September 27, 1989.
On. September 28, 1989, Intervenors filed a motion to admit the
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following contention concerning the onsite exercise:
The September 27, 1989 Seabrook Station onsite exercise was not a full-scale onsite exercise and did not test all or even
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a significant number-of the major observable portions of the Seabrook Station RERP ("onsite plan" or "SSRERP").
For this reason, the September exercise did not meet the regulatory requirements for the onsite exercise to take place within one year of licensing-(" pre-licensing one-year onsite exercise")
as required by 10 CFR Par 50, Appendix E, IV F.91. See also CLI-89-19. As a result, the September exercise provTHes no basis for the required finding of reasonable assurance as set forth in 10 CFR 50.47(a)(1) and (2), and that exercise is not L
in compliance with 10 CFR 50.47(b)(14),
jee,alsoALAB-900.
ee Intervenors' Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise, September 28,1989("MotiontoAdmit"), Attach.A p
at 1.
In that~ motion, Intervenors addressed the five standards governing admission of. late filed contentions found in 10 C.F.R. 5 2.714 but failed to address the criteria for reopening a closed record set out in 10 C.F.R. 0 2.734, deeming them inapplicable.
The Intervenors also chose not to address the reopening criteria in
.their second motion to admit contentions concerning the onsite exercise filed on October 13, 1989. By that motion Intervenors sought admission of the following contention:
The scope of the September 27, 1989 Exercise (" Exercise) of the Seabrook Station Onsite Emergency Response Plan (" Plan")
was so limited that it could not and did not yield valid or 2/- ~See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) CLI-89-19, 30 NRC 171 (1989).
meaningful results regarding the capability)to imp (a) ment the le Plan,1as required by 10 C.F.R. 6 50.47(a)(1 and (2)..in that it did not include demonstrations or evaluations of
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primary procedures. persons, organizations,l facilities, or equipment essential to implement the Plan. The Exercise did not test the adequacy of timing and content of implementing b) procedures and methods, did not test communications networks or the public notification system, and did not ensure that emergency organization personnel are competent or familiar with their duties, all it, violation of 10 C.F.R..
5 50.47(b)(14) and 10 C.F.R. Part'50, Appendix E IV.F.
Therefore, the willingness, availability, training, equipment, capability or performance of the personnel and entities relied upon to implement the Plan was-not adequately tested. The Exercise failed to meet regulatory requirements for an onsite' prelicense Exercise, and failed to test as much of the licensee Plan as is reasonably achievable without mandatory public participation in ' violation of 10 C.F.R. Part 50
{
Appendix E IV.F.1.
The " major observable portions" of the 4
onsite plan which must be demonstrated in the onsite exercise conducted within.one. year of licensing are those elements in
-j the plan that are required by 10 C.F.R. i 50.47(b) (1)-(16) and set out an developed in NUREG 06S4, II A-P.
ALAB-900.
Many of these " major observable portions" of the Plan were not
.I demonstrated in the Exercise, in violation of 10 C.F.R. Part 50 Appendix.E IV.F.
Intervenors' Second Motion To Admit Contentions on the September 27, 1989 Emergency Plan Exercise, Attach. A.
j On October 16, 1989, following receipt of the Board's ruling on their low power testing contentions, Intervenors asked to amend. their earlier motions.in order to submit legal argument addressing the reopening E
criteria. M According to the Intervenors, that ruling justified the i
supplemental filing as it represented the first time the Board applied l
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Intervenors' Motion To Amend Intervenors' Motions of September 29, 1989 and October 13, 1989 To Admit Contentions on the September 27, 1989 Onsite Emergency Plan Exercise.
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this' standard to determine the admissibility of their low power
,k contentions.SI Intervenors made further arguments for admission of contentions regarding the onsite exercise in a motion for summary disposition filed u
October 18 even though the contentions had not been admitted.
In support
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of that motion,.Intervenors claimed they were raising the purely legal question of whether the onsite exercise complied with the regulatory 1
requirements of App. E.IV.F.1 which, in their view, calls for the testing of.all major observable elements of the onsite plan. El As the basis for their motion, Intervenors cited six aspects of the plan which they claimed.
were omitted or insufficiently tested despite being major and observable elements.5/
The Licensing. Board issued a Partial Initial Decision authorizing the issuance of a full power operating license on November 9,1989.
Public
~ Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
LBP-89-32, 30 NRC (1989).
In that: decision, the Board acknowledged the. outstanding onsite exercise contention, stating that a memorandum would be issued explaining why it did not preclude the issuance of an operating license. Jd.at569, footnote 87.1/ As the Board explained in 1/
Id,. at 2.
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Memorandum of the Intervenors in support of Their Motion For Summary Disposition of the Scope Contentions Filed In Response to the September 27, 1989 Onsite Exercise, October 18, 1989, at 3, 5.
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Id. at 34-35,
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The Commission has affirmed that the Licensing Board could so act.
7 CLI-90-3, 31 NRC (March 1, 1990, slip op. at 11-15).
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J the promised memorandum,.some unresolved matters may properly be left to post-hearing consideration, particularly in matters of emergency planning where findings are necessarily predictive in nature. Public Service
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-Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-33, 30 NRC _ (1989), slip og. at 3-4.
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While the Board set forth some preliminary conclusions in the supplemental memorandum, it noted that an intricate set of legal arguments would have to be discussed before a complete and reviewable decision could be rendered. M.
Following a brief discussion of those conclusions, the Board reported that a decision denying Intervenors' motions on the onsite exercise would be issued as a matter of highest priority. M.at37-40.
That decision was embodied in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-38, 30 NRC _ (1989).
In LBP-89-38, the Licensing Board set out several grounds to deny
.Intervenors' motions.
First, the Board discussed the fundamental. flaw standard applicable to all exercise contentions, M. at 11-12, finding that a contention which merely alleges that planning elements one through
. sixteen of 10 C.F.R. 9 50.47(b) must be exercised does not satisfy the
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substantive relevance test for such a contention. M. at 13. The Board also found that'the standards for reopening a closed record set forth in L
10 C.F.R. $ 2.734 governed the admissibility of Intervenors' motions. H.
at 16. After analyzing the motions before it in light of the the applicable substantive standards and procedural rules, the Board concluded that:
[T]he Intervenors' motions do not allege with bases, or at all, that the 1989 onsite exercise revealed fundamental flaws in the respective emergency plan. The contentions do not allege with the requisite bases, or at all, that the 1989
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exercise was insufficient in its scope to reveal-fundamental flaws in-the plan. We find that the exercise was sufficient in-scope and no fundamental flaw was revealed.
Intervenors'~
j motions do not address a significant safety issue.
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Intervenors' motions do not address a significant safety
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issue. They have defaulted in their burden to establish by affidavit or otherwise that their motion addresses a significant safety issue. The affidavits of Messrs. Kantor, a
Fox, Callendrello and Ellis (submitted by Applicants and 1
Staffj are credible, relevant, and sufficient. They establish by a preponderance of the evidence that the 1989 exercise was j
sufficiently comprehensive in scope, and that no fundamental flaws in the plan were revealed by that exercise, j
. y.at30-31. Given those conclusions, the Board's decision did.not turn on a balancing of the five governing admission of late filed contentions
. ' set forth-in 10 C.F.R. 6 2.714(a)(1). Nevertheless, the Board weighed these factors and concluded that there was no basis on which to admit the s
proffered contentions.- M.at31-32.
Thus, the Board's ultimate decision to deny Intervenors' motions was premised upon the following separate determinations:
1.
Intervenors failed to allege that the exercise revealed a fundamental flaw in the onsite plan or that the scope of the exercise was insufficiently comprehensive to have revealed a fundamental flaw.
2.
Intervenors failed to comply with the express requirement in~10 C.F.R. 9 2.734(b) that motions to reopen the record be~
accompanied by affidavits.
- 3.
Intervenors failed to raise a significant safety or environmental issue as-required by 10 C.F.R. 9 2.734(a) since the evidence showed that the exercise was sufficiently i
-comprehensive in scope and did not reveal any fundamental l
flaws in the onsite plan.
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Intervenors did not prevail on a weighing of the five factors governing admission of late filed contentions Because it had determined that Intervenors' contentions were not L
admissible the Boa'rd noted that their motion for summary disposition would i
necessarily have to be denied as well. M.at33.
However, the Board E
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/,I found that even if'an issue had been accepted, the affidavits submitted by
- the Applicants established material facts as to which there was a genuine-I, dispute. JA.
Next, the Board turned to the underlying legal question raised by Intervenors' pleadings--whether an onsite exercise must include all major observable elements under 10 C.F.R. Part 50, App. E. 6 IV.F.1.
Following an analysis of the regulation involved, the Board rejected the interpreta-tion urged by the Intervenors, finding that the one-year, pre-license exercise need not encompass all major observable portions of the onsite plan.
I,d_. at 41.
STATEMENT OF THE ISSUES A large portion of Intervenors'- brief is a section which they style as a " Preliminary Comment On The Licensing Board's Disposition Of September, 1989 Exercise Issues." Brief at 4-13.-
While Intervenors
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' voice numerous complaints about the Board's handling of their onsite contentions, they do not allege any specific errors in the decision being reviewed by this Appeal Board. They do, however, raise'one question of significance if not merit--whether jurisdiction of LBP-89-38 lies with this Appeal Board. Accordingly, that question is included in our statement of issues.
Elsewhere in their brief, Intervenors assert in a footnote that the Board erred in finding that their contentions did not meet the standards for reopening the record "for the reasons set out in their October 16 Motion to Supplement".
Brief at 30-31, footnote 34. Aside from a brief l-notation concerning the Board's finding that they had not met the l
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requisite criteria because they had not filed supporting affidavits, they provide no reasons for the Board's decision to be reversed on appeal. Nor do they address the_ facts underlying the Board's decision. This issue should therefore be deemed to have been waived.
In the words of the Appeal Board:'
This will not do.. It is not enough_ to declare flatly that a i
particular Board ruling was in error. Rather, it is incumbent upon the appellant to confront directly the reasons'assi,gned for the challenged ruling and to identify with particularity the' infirmities purportedly inherent in those reasons.'
Moreover, 'a party's-failure to submit'a brief containing l
sufficient information and argument to allow the appellate L
tribunal to make an intelligent disposition of the issues raised.... is' tantamount to their abandonment.
Carolina Power and Licht Company et al. (Shearon Harris Nuclear Power Plant),ALAB-837,23NRC525,533-534. Nevertheless, in the interest of-1 completeness, it is included in the statement of issues which follows.
1.
t;hether jurisdiction over LBP-89-38 lies with this Appeal Board, i
2.
Whether the Licensing Board erred in finding that Intervenors' contentions had to allege that the exercise revealed a fundamental flaw or L
.that the scope of the exercise was too limited to reveal the presence of fundamental flaws.
'3. :Whether the Licensing Board erred in applying the reopening standards of 10 C.F.R. 5 2.734 to Intervenors' motions to admit late filed L
contentions.
'4. -Whether the Licensing Board erred in finding that Intervenors' motions failed to meet the reopening standards set forth in 10 C.F.R. 5 2.734.
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- 5.,Whether the Licensing Board erred in concluding that the principal 1
- purpose of the within-one-year onsite exercise is to assure training and
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competency.
6.
Whether the Licensing Board erred in finding that Intervenors' motions 1
J were late filed.
- 7. 'Whether the Licensing Board erred in finding that the pre-license' I
onsite exercise need not be a full participation exercise. E
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The Intervenors' brief.also contains a " Preliminary Statement" (at
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13-25).
Part of that statement contains an argument that the i
Licensing Board wrongly refused to hold the record open after the receipt of evidence to provide for a further prehearing conference and the filing of new contentions. These arguments are largely academic as the Licensing Board later-ruled that the matters which Intervenors sought to raise had no predicates. LBP-89-38, on appeal here. Moreover, the Licensing Board had no authority to take that' action. SeeTr.28288-89(Smith).
"[A] license board must confine itself to matters with which it has been given authority to act."
Jurisdiction of a licensing. board in-an operating license proceeding is limited to admitted contentions and other matters specifically 1
delegated to it. 10 C.F.R. 5 2.104(c), 2.760a; Public Service Co.
of Indiana (Marble Hill Nuclear Generating Station, Units. I and 2),
ALAB-316, 3 NRC 167 (1976); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985). See also-Carolina Light & Power Co. (Shearon Harris Nuclear Power Plant),
ALAB 852, 24 NRC 532, 545 (1986); Consolidated Edison Co. (Indian Point, Units 1, 2 & 3), ALAB-319, 3 NRC 188, 190 (1976). Moreover, licensing boards have been encouraged by the Commission to issue i
decisions as soon as legally possible. Statement of Policy on
. Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453, 458 (1981); Public Service Co. of New Ham) shire (Seabrook Station, Units 1 and 2), ALAB-910, 29 NM 95, 96 (19 39) (quotin Coninission memorandum order of January 24.-1989)g unpublished This " Procedural-Statement" also contains irrelevant and unfounded attacks on the Commission staff. See 14-15, 23 n.30. The Staff's failure to reply to these matters should not be interpreted as agreement with the statements made.
Should the Appeal Board conclude that any of these matters are relevant to this appeal, the Staff will set out the basis of statements of law or fact made in prior pleadings.
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ARGUMENT-I.-
Jurisdiction over LBP-89-38 lies with this Appeal Board.
In the " preliminary comment on licensing board's disposition of j
September, 1989 exercise issues", Intervenors conclude that this Appeal Board's jurisdiction over LBP-89-38 is in doubt. Brief at 10. According-to'the'Intervenors, admission of their contentions on the onsite exercise was finally denied by the Licensing Board, albeit tacitly, in LBP-89-32, jurisdiction of which has now passed to the Court of Appeals.
Consequently, they argue, this Appeal Board should either strike LBP-89-38 i
as beyond the jurisd'ction of the Licensing Board or disregard LBP-B9-38 i
as merely a post facto rationalization of LBP-89-32. Ld, at 8-12.
The conclusions-Intervenors reach are incorrect because they proceed from a faulty premise. As the Commission concluded in CLI-90-3, the pendency of motions to reopen the record, as well as remanded issues, did
' not prevent the Licensing Board from issuing LBP-89-32, authorizing the issuance of an operating license, and later ruling on the motions to reopen the record. At 11-15. E Thus Intervenors' argument that the Licensing Board had no jurisdictio7 to issue LBP-89-38 must be 9/
This portion of CLI-90-3 was addressed in the context of ruling on
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the motions to revoke the authorization to issue an operating
-license, and not in the context of the "immediate effectiveness review," and thus is binding. At3;cl.10C.F.R.92.764(g).
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.n rejected. EI.There is no basis to conclude that LBP-89-38 was wrongly issued or that this Appeal Board may not review it. NI J
tII. The Licensing Board Correctly Decided That Intervenors' Contentions Had To Allege That the Exercise Revealed a Fundamental Flaw or That the Scope of the Exercise was Too Limited to Reveal the Presence of a Fundamental Flaw.
The Commik% anticipating the possibility of litigation of this onsite exercise-in Public Service Co. of New Hampshire (Seabrook Station, Units 1and2),CLI-89-19,30NRC171,174n.5-(1989), stated"[i]norder to have any contention on an exercise. considered in a hearing, Commission case law establishes the need to allege a fundamental flaw.
S_e.e, M e
Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) ALAB-903, 28 NRC499(1988)." In ALAB-903, a fundamental flaw was defined as one which reflects an essential element of the plan and can be remedied only through significant revision of the emergency plan. M.
The implications of the fundamental flaw standard on contentions challenging the scope of an exercise:were examined in Long Island Lighting-Company (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275 (1989).
In concluding that an intervenor must be allowed to challenge the scope of an exercise, the Appeal Board found implicit in the Commission's criterion for admissible contentions set out in CLI-86-11 the assumption
~/ For these-reasons, Intervenors' request to strike LBP-89-38 as beyond 10 the jurisdiction of the Licensing Board (Brief at 9), must be denied.
11/ Much of the language the Intervenors use in discussing the actions of the Licensing Board in their Procedural Statement, as throughout their brief, is intemperate and has no place in NRC proceedings. See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 N F 897 916 (1982), citing 10 C.F.R. 2.713(a).
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l that the exercise must be comprehensive enough to permit a meaningful test of the plan-in order to determine if it is fundamentally flawed. M. at
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t 286.
l In spite of the Commission's-clear mandate in CLI-89-19 that any-contentions concerning the on-site emergency planning exercise must allege l
a fundamental flaw,:Intervenors failed to allege either that a fundamental flaw was revealed by the onsite exercise or that the exercise was too p
limited to reveal a fundamental flaw.
For that reason, the Board was-correct in finding their contention failed to meet the substantive relevance test of an emergency planning contention or the specificity requirements of 10 C.F.R. 9 2.714(b).
LBP-89-38 at 13.
On. appeal, Intervenors argue that the Board erred in finding they failed to claim that the exercise was too limited in scope to have revealed a fundamental flaw. Brief at 28.
Even a cursory review of-Intervenors'. contention, however, reveals that Board's conclusion was correct.
Intervenors' contention rests upon the allegation that the scope was deficient because it did not encompass all the major observable portions as set out in 10 C.F.R. I 50.47(b)(1)-(16). As the Board noted.
"while one might speculate that these alleged infirmities in-the onsite exercise and its scenario restricted the exercise to the point where it could not have revealed fundamental flaws in-the SSRERP, we see no need to p
draft Intervenors' contentions for them. They are fully infonned of the l
law." - LBP-89-38 at 6.
L Intervenors also argue that the Board committed error to the extent that it held that contentions regarding the scope of an exercise allege how a fundamental flaw would have been demonstrated if an untested element F
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., of the plan had been included in the exercise.
Brief at 28.
Nowhere in its decision, however, did the Board indicate that a scope contention must i
allege what would have occurred if the scenario had been different. To the' contrary, the Board found it understandable that Contention EX2 makes no mention of-any fundamental flaw revealed by the onsite exercise since it is a " scope" contention. LBP-89-38 at 5.
The flaw perceived by the.
Board was the fact that "it did not even allege that the onsite exercise was insufficiently comprehensive to have revealed fundamental flaws, nor-does it point to any non-exercised aspect of the onsite emergency plan I
which had the capacity to reveal fundamental flaws if that aspect had been exercised". M.
III. The Licensing Board Correctly Ruled That The Reopening Standards i
Apply to Intervenors' Onsite Contentions.
l
.Intervenors also argue that-the Licensing Board erred by applying the reopening standard set out in 10 C.F.R. I 2.734, contrary to the mandate of the Court of Appeals in San Luis Obispo Mothers for Peace, 751 F.2d 1
1287 (D.C. Cir. 1984), aff'd rehearing en banc, 789 F.2d 26 (1986), cert y
denied, 479 U.S. 923 1986) and UCS v. NRC, 735 F.2d 1437 (D.C. Cir. 1984),
i cert denied 469 U.S. 1132 (1985), and in not providing any reasoned R
explanation to support that action. Brief at 29. The Board's decision, however makes it clear that the standard was applied for the simple reason that it is mandated by the Commission's regulations.
In the words of the l
Licensing Board:
l' -
we need not anguish over whether UCS permits the application of.the rule governing motions to reopen a closed record.
The record of this proceeding is closed, and we must obey the clear provisions of 10 C.F.R. 6 2.734 for dealing with closed records.-
i
E ja o
j s LBP-89-38 at 16. As the Board acknowledged, it is bound by the Comis-sion's regulations and could not choose to ignore them even if it wished L
to follow that course. See 10 C.F.R. 6-2.785; jee, also Public Service ee Co. of-New Hampshire (Seabrook Station, Units 1 and 2), ALAB-875, 26 NRC 251, 256. (1987)~ (Commission regulations must be followed by adjudicatory-board unless stricken by the Commission); South Carolina Electric & Gas
,Co. (Virgil C. Sumner Nuclear Station, Unit 1), ALAB-710,17 NRC 25, 28 (1983) (Licensing Boards must follow Commission direction).
.l l;-
However, the Board correctly saw no reason to depart from the express j
?
requirements of 10 C.F.R. 5 2.734, since UCS does not limit the f
Commission's discretion in determining the procedures under which exercise 1
e i
L 1.ssues may be disputed as long as a right to reopen a record does not rest j
1 upon " unfettered discretion" alone. LBP-89-38 at 16.
As the Board recognized, the Commission was fully cognizant of the Court's holding in
]
E when codifying-Section 2.734 and accordingly expressly distinguished 3
it from Section 2.206 under which such discretion is permitted. M.
The UCS case involved a challenge to an amendment to a Commission
. regulation which removed the results of emergency planning exercises from consideration in operating license hearings.
735 F.2d at 1440-41. The
- Court determined that the amendment in question was invalid because it denied the hearing rights conferred through section 189(a) of the Atomic Energy Act by removing material issues from the proceeding. M. at 1441-43.. Further, the Court found that the option of petitioning under 10 C.F.R. 9 2.206 to have the Commission, as a matter of discretion, reopen a record was not broad enough to comply with the hearing requirements prescribed by statute. J,d_.at1444.
l
y The Court was careful to note, however, that the hearing requirement conferred:by section 189(a) did not unduly restrict the Commission's discretion to limit its licensing hearings to material issues as long as there is an opportunity.to dispute issues raised by exercises. M. at 1448-49.
InLparticular.-the Court stated that it was in no way restricting the-Commission's authority to adopt a substantive standard under which the NRC could summarily dismiss "any claim that did not raise genuine issues of material fact about the fundamental nature of the emergency preparedness plans". M.at1448. Thus, the Court found that.
the Commission's wide discretion in structuring its licensing hearings to serve the interests of speed and efficiency is limited only to the extent that it does not have the " unfettered discretion" to do away with them I_d,. at 1449.
d altogether.
The Commission' acted in consonance with the UCS case when it codified i
the standards for reopening record in 10 C.F.R. 5 2.734. As the Commis-sion stated, "[t]he purpose of the rule is not to foreclose the raising of important safety issues, but to ensure that, once a record has been closed and all timely-raised issues have been resolved, finality will attach to the hearing process. Otherwise it is doubtful whether a proceeding could 51 F_ed. R,e3 19539, May 30, 1989, Final Rule.
ever be completed".
e e
Criteria for Reopening Records in Fonnal Licensing Proceedings.
Further, the application of 10 C.F.R. 6 2.734 to Intervenors' onsite contentions is consistent with the holding of Mothers for Peace v. NRC, supra.
In that case, the Court found that the Petitioners, San Luis Obispo Mothers for Peace, had been denied hearing rights arising from the extension of the term of an operating license. J_d,.at1314-16.
In the
4 1,
16 -
m Court's view, the extension was the equivalent of an amendment of the license, for which hearings are explicitly guaranteed under section ld,at1314. The Court stated, therefore, that the most the 189(a).
d Commission could require a party to show is that an issue it sought to raise was material to the proposed licensing action. Ld at 1316, 1318.
The Intervenors in this proceeding, however, are not in the position of an individual who has been denied a hearing arising from one of the actions for which a hearing is guaranteed under section 189(a) by the application of the reopening criteria.
Instead, they are attempting to gain admission of new contentions arising from an emergency exercise.
This is the type of situation the Supreme Court anticipated in ICC v.
Jersey City, 322 U.S. 503, 514-515, (1974) when it stated:
Administrative consideration of evidence always creates a gap between the time the record is closed and the time the
. administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful.
If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has-been observed; or.some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be-subject to reopening.
It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion.
In these circumstances, application of the reopening standards is appropriate. See also Mothers for Peace v. NRC, 751 F.2d at 1317-18, particularly recognizing the applicability of the Comission's reopening standards to such issues; Oystershell Alliance v. NRC, 800 F.2d 1201, 1207 (D.C. Cir. 1986); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-89-1, 29 NRC 89, 93 (1989) (applying 10 C.F.R. 6 2.734 to contentions submitted after a record is closed).
f IV. The Licensing Board Correctly Found That Intervenors' Motions Did Not Meet the Reopening Standards of 10 C.F.R. I 2.734.
Under 10 C.F.R. I 2.734, a motion to reopen the record cannot be granted unless, among other things, it addresses a significant safety or environmental issue and is accompanied by one or more affidavits setting
-forth the bases for the motion. Because reopening the record is considered an extraordinary action, the movant bears a heavy burden.
Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1),
ALAB-462,7NRC320,328(1978). Thus, adjudicatory boards are expected to enforce the requirements of Section 2.734 rigorously, rejecting out-of-hand motions which do not meet them "within their four corners".
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-915,29NRC427,432(1080).
In light of the foregoing guidance, the Licensing Board was correct in finding that Intervenors' motions failed to meet the requisite criteria for the reason that they were not accompanied by affidavits. LBP-89-38 at
- 19. As the Board noted, "the provision of Section 2.734(b) leave no place to hide" in that it states:
The motion must be accompanied by one or more affidavits which set forth the factual-and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied.
I_d. Intervenors' claim that the only affidavits they could have submitted d
would have necessarily raised legal arguments (Brief at 30-31, footnote 34), is without merit.
In order to show that they had raised a signiff-cant safety issue, the Intervenors would have had to establish that significant elements of the plan were omitted from the exercise and that factually those elements could have revaaled fundamental flaws.
j y
- LBP-89-38, at _7-9.- As the Licensing Board recognized, these are matters which involve factual determinations such as these addressed in affidavits Ld at 17-19.
from the Staff and the Applicants.
d Notwithstanding the failure of the Intervenors to submit the requisite affidavits, the Licensing Board found that their motions did not meet the criteria of 10 C.F.R. 9 2.734 for the additional reason that they did not address a significant safety issue. M.'at31..TheBoard's finding on this point was' fully supported by the affidavits submitted by the Staff and the Applicants, M. at 20-31, and remains unrefuted by any expert proffered by the Intervenors.
V.
The Licensing Board Was Correct in Concluding That the Principal Purpose of the Within-One-Year Onsite Exercise is To Assure Training and Competency.
In'its discussion of the significance of the issues raised by Intervenors, the Licensing Board-concluded that the major purpose of the "within-one-year" onsite exercise.is assure training and competency, not' to test an already tested and validated emergency plan. LBP-89-38 at 22.
According to the Intervenors, this was legal error because the Board
" invented a different purpose for 'later' onsite exercises as compared with ear 11er' ones". Brief at 31. When read in context, however, it is apparent that this claim of error is groundless.
Before reaching its conclusion about the purpose of the onsite exercise, the Board stated:
When the Commission amended its rules to relax the frequency
~
of a full participation exercise (i.e., with State and local government participation) to two years it held fast to the within-one-year onsite exercise requirement. This was because such exercises are best held closer to operation (as Mr.
Kantor explained) to ensure "that licensee's new personnel are
s
' adequately and promptly trained and that existing licensee personnel maintain their emergency response capability." 52 Fed. Reg. 16822, 16825 (May 6, 1987) Final Rule, Emergency Planning and Preparedness.
LBP-89-38 at 22.
In the context of that discussion, it is clear that the Board was distinguishing the purpose of conducting an onsite exercise from the purpose of a full participation exercise. Not only is this apparent-from a careful reading of the decision itself but by an examination of the legislative history cited by the Board.
In the statement of consideration accompanying the final rule which changed the frequency of full participation exercises, the Commission explained that the purpose of the pre-license onsite exercise differed from that of a full participation exercise. Specifically, the Connission stated:
This annual emergency response function drill ensures that the licensee's new personnel are adequately and promptly trained and that existing licensee personnel maintain their emergency response capability.
The existing requirement of a pre-operational onsite exercise within one year prior to full-power license issuance is consistent with this philosophy as well as the Commission's general desire to have pre-operational emergency planning exercises as close as practicable to the time of licensing...
Moreover, to mandate an onsite exercise within one year of operation while requiring an offsite exercise within two
' years is a recognition of the distinct nature of the participantsinvolvedineachinstance...Incontrast[to State and local emergency planning organizations), as an applicant makes a full-scale shift from a facility construction to a facility operation mode within the the last twelve to eighteen months prior to operation, as a general rule many new operational personnel are retained who must be ready to carry out the utility's onsite emergency response responsibilities.
It is also in recognition of this distinction that the Commission finds that an onsite exercise should be required within one year of licensing to provide assurance that the applicant's onsite response capabilities are adequate.
a
. [
_l 52' Fed. Reg.116823, 16824-25 (May 6, 1987).
Nowhere in that statement did q
.the Commission cite any distinction in the purpose of the within-one-year c
onsite exercise and any other on-site exercise. The Commission did,
~ however, cite a different purpose for offsite, full participation exercises,~ stating:
l To the extent that an offsite pre-licensing exercise is intended to reveal whether an emergency plan has fundamental
-flaws, that purpose can be achieved at least as well by an exercise held within two years of licensing as within one year.
Id.at16824-25.
Further, past Staff practice as reflected in the affidavits submitted by the Staff. E which the Board cites extensively (LBP-89-38 at 20-30),
make no distinction in the requirements for different onsite exercises.
Indeed, the Board stated as much, noting that "the exercise of the onsite plan within one year of. licensing is considered by the NRC Staff to be akin to the annual exercise of the onsite plan specified in Section-IV.F.2 of Appendix E' to 10 C.F.R. Part 50."
Id. at 23.
In sum, when the Board's decision is considered in the context of the evidence before-it and the applicable Connission guidance, it cannot reasonably be concluded that the Board meant to distinguish "estlier" and 1
"later" onsite exercises in tarms of purpose.
Instead, the Board was simply recognizing the distinction between the purpose of full participa-tion exercises and onsite exercises. Thus, Intervenors allegation of error is based upon a misreading of LBP-89-38.
12/ Affidavits of Falk-Kantor and Edwin F. Fox, Jr. attached to NRC Staff Response to Intervenors' Motion to Admit Contentions on September 27, 1989 Exercise, October 16, 1989.
p, L. d
q-j H :
VI. The-Board Did Not Err in Finding Intervenors' Motions Late Filed.
i 4
As.a predicate of its holding that Intervenors' motions were
- inadmissible under the five factors governing the admission of late filed contentions, the. Board.found their motions were late without good cause.
3 The Intervenors state this was error. Brief at 32. However, as the Board i
. determined, Intervenors failed to submit legal arguments essential to their motions until they filed for summary disposition. LBP-89-38 at 31-32. While Intervenors are correct that legal argument per se is not required in a motion to file a late-filed contention, it is necessary that they prevail upon a weighing of the five factors set forth in 10 C.F.R.
)
~
9 2.714. Absent any showing that those factors favor admission, the motion must be denied. Thus, the motion must set forth a reasonable basis upon-which the presiding officer may find that a balancing of the five Since the Intervenors failed to provide that factors warrant.ad n.
basis until they su c ad their motion for summary disposition (which need not have been considered at all considering' the contentions had never-
~
been admitted), the Board properly concluded that a necessary element of their motion was late filed. Given the experience and the sophistication of' the Intervenors, there can be no good cause for their failure to submit the requisite legal analysis underlying a motion to admit late filed contentions until they filed motions for summary disposition on those contentions.
L l'
L, o
L
,~
x--
m
l VII. The Licensing Board Correctly Ruled That Onsite Exercises Are hot Required To Be full Participation Exercises as Defined in 10 C.F.R.
I Part 50. Appendix E.Section IV.F.1.
On the basis of what it found to be the " clear import" of the f
language of Section !Y.F.1. the Licensing Board rejected Intervenors' argument that the one-year, pre-license onsite had to be a " full participation exercise" testing all " major observable portions" of the onsite plan which are reasonably achievable without mandatory public participation. LBP-89-38 at 40-41; M. Brief at 32-34 The regulatory requirement to test " major observable portions of the onsite and offsite emergency plans" only applies to a " full participation exercise" in which
[
an offsite plan is tested. Thus a prelicensing onsite exercise need not j
test all major observable portions of an onsite emergency plan. The Licensing Board's decision on this point is well reasoned and sound. E The Licensing Board recognized that the interpretation urged by the Intervenors is contrary to the plain meaning of the regulation.
The relevant regulation provides:
A full participationM exercise which tests as much of the licensee State, and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted for each site at which a power reactor is located for which the first operating license for that site is issued after July 13, 1982. This exercise shall be conducted within two years before the issuance of the first operating license for full power (one authorizing o>eration, above 5% of rated power) of the first reactor and sia11 include participation by each State and local government within the plume exposure pathway EPZ.
If the full participation exercise is conducted more than one year prior to the issuance of an operating license for full power, an exercise which tests the licensee's 13/ The Commission in CLI-90-3, slip op, at 55, dealt with this matter.
However, no comment by the Comission in that part of its decision is to be given any weight in this appeal as it was addressed in the context of an "immediate effectiveness review." M.at3.
f !
onsite emergency plans shs' be conducted within one year i
before issuance of an operesing license for full power. This t
exercise need not nave State or local governnant participation.
l l
4/
" Full participation" when used in conjunction with
~emergency preparedness exercise for a particular site means J
appropriate offsite local and State authorities and licensee personnel physically and actively take part in testing their integrated capabilities to adequately asses and respond to an accident at a commercial nuclear power plant.
" Full participation" includes testing the m*'or observable portions i
of the onsite and offsite emergency plans and mobilization of State, local and licensee personnel and other resources in i
sufficient numbers to verify the capability to respond to the accident scenario.
t When the regulation is viewed in its entirety, rather than in isolated segments as Intervenors suggest, it is clear that the first two sentences set forth the requirement that a full participation exercise be conducted within two years before issuance of a full power license.
According to the next sentence, if the full participation exercise is l
conducted more than one yNa before license issuance, then an onsite l
exercise must be conducted. The last sentence expressly provides that the exercise of the onsite plan need not have State or local government participation.
According to the Comission's own definition, the term " full I
participation" means not only that all major observable elements of a plan i
be tested, but also that " appropriate offsite local and State authorities" l
take part.
In light of that definition. it is obvious that the Commission did not mean the term " full participation" to be a generic one applying to L
i all exercises as the Intervenors allege.
The wording of the regulation thows that the on-site exercises are not " full participation exercises" which require " testing of major observable portions of onsite and offsite e
,--a-w n,--n-
,s,--
-o emergency plans.* They are different from those full participation exercises and different requirements apply to those exercises.
i Because the regulation involved is clear on its face, the Board need not have examined its administrative history. As the Appeal Board stated in Long Island Lighting Company ($horeham Nuclear Power Station Unit 1),
ALAB-900,28NRC275,288(1988):
[!)nterpretation of any regulation must begin with the language and structure of the provisions itself,.. Further, the entirety of the provision must be given effect...
Although administrative history and other available guidance may be consulted for background information and the resolution of ambiguities in a regulation's language, its interpretation may not conflict with the plain meaning of the wording used in i
that regulation.
(citationsomitted).
Nevertheless, the administrative history of the regulation fully supports the plain meaning of the Commission use of the term " full participation" with regard to exercises.
Originally, the rule required annual " full scale" exercises. 45 Fed.
i Reg.55402,55413(August 19,1980). The wording " full scale" was changed i
" full participation" in the 1984 rule change which relaxed (to biennially) the frequency of state and local participation in exercises held after the issuance of a full power license.
49 Fed. Reg. 27733 (July 6, 1984); see alsoProposedRule,48 Fed. Reg.33307(July 21,1983). Nevertheless, the l
definition of the two terms was unchanged; 1.e., that the licensee, State I
and local authorities were required to participate in a joint exercise.
In proposing the 1984 rule change, the Commission specifically spoke to the necessary scope of an onsite exercise, saying:
[
The proposed rule would not relax in any manner the onsite exercise that each licensee is required to conduct which includes exercising control room, technical support center, and energency operating facility functions. A partial or full-participation exercise would satisfy the licensee's
i
., l annual requirement for an onsite exercise as full licensee l
participation is required for either type of exercise, j
In the statement of consideration accompanying the f
final rule, the Commission reiterated the requirement that onsite exercises test the three specified areas. 49 Fed. Reg. 27733 (July 6, 1984). Absent from the Comission's statement, however, is any j
association between the words " full participation" and an ancite exercise, In 1987, the Commission changed the timing requirements for the
" pre-licensing" full participation exercise for power reactors and statt4t The amendment requires a full participation exercise, including State and local governments, to be held witMn two years before the issuance of a full-power operating licensh as opposed to the current requirement of within one year. An exercise which tests the licensee's onsite emergency plan, but which need not include State or local government participa-tion, is still required to be held within one year before issuance of a full-power operating licence.
52 Fed. Reg.16823(emphasisadded). The Commission also stetted that it f
had decided to separate the "offsite" and "onsite" portions of the pre-licensing exercises based upon its experience with post-licensing exercises that emergency preparedness can be adequately tested by a full l
participation exercise held biennially:
Since the promulgation of its emergency planning requirements in 1980, both the Commission and the Federal Emergency Management Agency (FEMA) have gained much experience in i
assessing the results of, and the requirements for, full-participation exercises. Most of these exercises have been the post-licensing exercises that NRC and FEMA regulation now require to be held every two years.
In setting the two-year requirement for operating plants in 1984, prior NRC and FEMA experience demonstrated that the reasonableness of emergency planning at a nuclear power plant can be fairly tested and adequately assured by full-participation exercises which are held every two years rather than on a more frequent basis.
(49 FR 27733-27735, July 6, 1984). Similarly, the Commission has concluded that no safety requirement mandates a full-participation exercise within one year prior to plant licensing. To the extent that an offsite pre-licensing
.~n-,
i i
, i exercise is intended to reveal whether an emergency plan has fundamental flaws, that purpose can be achieved at least as well by an exercise held within two years of licensing as l
within one year. To the extent that the exercise is designed to test the preparedness of those individuals and organization that must participate in offsite emergency planning, NRC and FEMA experience with post-licensing exercises has convinced us that exercises every two years, including remedial exercises when neceissary, perform this function satisfactorily.
Exer-cises on a more frequent basis are not necessary to enable the Commission to detemine whether an emergency plan provides
" reasonable assurance that adequate protective measure can and will be taken in the event of a radiological emergency."
10 CFR 50.47(a) 52 Fed. Reg. 16824. The Commission further stated that "to mandate an onsite exercise within one year of operation while requiring an offsite exercise within two years is a recognition of the distinct nature of the Jd, at 16825. Thus, it is clear i
d participants involved in each instance".
that the Commission intended that full participation, rather than onsite, exercises would be broad enough in scope to reveal a fundamental flaw.
As the foregoing discussion demonstrates, the Licensing Board's interpretation of the application of the term " full participation" under Section IV.F.1 comports with the plain meaning of the regulation itself and its legislative history. Nevertheless, should this Appeal Board rule otherwise, any error comitted by the Board was harmless. As the Licensing Board was aware, resolution of the question of whether an onsite exercise must be " full participation" was not essential to its decision since Intervenors' motions were also denied for failing to satisfy the Comission's pleadings requirements or the standards for reopening the record. LBP-89-38 at 33-34, footnote 10.
i
, ~.. _..
-r f
CONCLtlSION For the reasons set forth above, the NRC Staff submits that the t
Licensing Board's decision in LBP-89-38 should be affirmed.
Respectfully submitted, l0 Lisa B. Clark i
Counsel for NRC Staff i
Dated at Rockville, Maryland this 5th day of March, 1990 6-I h
i e
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<r 00LKETED UNITED STATES OF AMERICA NUCLEAR REGULATORf COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 8 RD In the Matter of QF' ICE or 5tcRfiARY j
Docket Nos. 50 M 5 T! $ " I l
PUBLIC SERVICE COMPANY OF 50-444 OL l
NEW HAMPSHIRE, et,,a_1,.
Off-site Emergency Planning i
(SeabrookStation, Units 1and2)
P CERTIFICATE OF SERVICE I hereby certify that copies of *NRC STAFF'S BRIEF IN OPPOSITION TO INTERVENOR$'
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 l
system, as indicated by double asterisks, by express mail, this 5th day of March 1990:
i Ivan W. Smith, Chairman (2)*
Peter Brann, Esq.
Administrative Judge Assistant Attorney General l
Atomic Safety and Licensing Board Office of the Attorney General 1
U.S. Nuclear Regulatory Comission State House Station 6 i
Washington, DC 20555 Augusta ME 04333 Richard F. Cole
- John Traficonte, Esq.**
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General i
U.S. Nuclear Regulatory Commission One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 02108 Kenneth A. McCollom**
Geoffrey Huntington Esq.**
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74075 25 Capitol Street Concord, NH 03301 Thomas G. Dignan, Jr., Esq.**
Robert K. Gad, III, Esq.
Diane Curran, Esq.**
Ropes & Gray Hamon, Curran & Tousley One-International Place 2001 S Street, FW Boston, MA 02110-2624 Suite 430 Washington, DC 20009 4
b
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- Robert A. Backus. Esq.**
Jack Dolan Backus, Meyer & Solomon Federal Emergency Manaoement Agency 116 Lowell Street Region !
Manchester, NH 03106 J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 H. J. Flynn, Esq.
Judith H. Mizner, Esq.
Assistant General Counsel 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Robert Carrigg, Chairman Board of Selectmen Paul McEachern, Esq.**
Town Office
$haines & McEachern Atlantic Avenue 25 Maplewood Avenue North Hampton, NH 03062 P.O. Box 360 Portsmouth, NH 03801 Mrs. Anne E. Goodman, Chairman Board of Selectmen George Hahn, Esq.
13-15 Newmarket Road Attorney for the Examiner Durham, NH 03824 Hahn & Hesson 350 5th Ave Suite 3700 Hon. Gordon J. Humphrey New York, NY 10118 United States Senate 531 Hart Senate Office Building R. Scott Hill-Whilton, Esq.
Washington, DC 20510 Suzanne P. Egan, Esq.
Lagoulis, Hill-Whilton
& Rotondi Richard R. Donovan 79 State Street Federal Emergency Manaoement Agency Newburyport, MA 01050 Federal Regional Center 130 228th Street, S.W.
Allen Lampert Bothell, Washington 98021-9796 Civil Defense Director Town of Brentwood Peter J. Matthews, Mayor 20 Franklin City Hall Exeter, NH 03833 Newburyport, MA 01950 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter, NH 03833 South Hampton, NH 03827 10 Front Street Exeter, NH 03833 Ashod N. Amirian, Esq.
Town Counsel for Merrimac Gary W. Holmes, Esq.
145 South Main Street Holmes & Ellis P.O. Box 38 47 Winnacunnet Road Bradford, MA 01835
'Hampton, NH 03842 Barbara J. Saint Andre. Esq.
Kopelman and Paige P.C.
77 Frankin Street Boston, MA 02110 p
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3 1
Ms. Suzanne Breiseth George Iverson, Director Board of Selectmen NH Office of Emergency Management I
Town of Hampton Falls State House Office Park South j
Drinkwater Road 107 Pleasant Street Hampton Falls, NH 03844 Concord, NH 03301 Atomic Safety and Licensing Robert R. Pierce. Esq.*
Board Panel (1)*
Atomic Safety and Licensing U.S. Nuclear Regulatory Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Office of the Secretary (2)*
l U.S. Nuclear Regulatory Comission i
Atomic Safety and Licensing Washington, DC 20555 Appeal Panel (6)*
Attn:
Docketing and Service Section U.S. Nuclear Regulatory Comission Washington, DC 20555 I&t
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A Lisa B. Clark
+
Counsel for NRC Staf' 1
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