ML20039G064
| ML20039G064 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/12/1982 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | AFFILIATION NOT ASSIGNED |
| References | |
| NUDOCS 8201150244 | |
| Download: ML20039G064 (12) | |
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O 1/12/82 UNITED STATES OF AMERICA A
flVCLEAR REGULATORY COMMISSION RECEfYES,'
E3 JA H 3 g g y BEFORE THE ATOMIC SAFETY AND LICENSING BOARD amernauamY In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL
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g NEW HAMPSHIRE, et _al.
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50-444 OL
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(Seabrook Station, Units 1 and 2)
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RESPONSE OF THE NRC STAFF TO AMENDMENTS TO PETITION FOR LEAVE TO INTERVENE BY THE SOCIETY FOR THE PROTECTION OF THE ENVIRONMENT OF SOUTHEASTERN NEW HAMPSHIRE I.
INTP0 DUCTION By motion dated December 23, 1981, Petitioner "The Society for the Protection of the Environment of Southeastern New Hampshire" filed a motion to amend its original petition to intervene in this proceeding, filed Novenber 10,1981.1/ The proposed amendment consists of seventeen affidavits of petitioner's members which, inter alia, identify two spokes-men for petitioncr; state the representational authority of such spokes-nen; and attempt to demonstrate the interest of the affiants, including l
l the designated spokesmen, in this proceeding.
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The Staff respanded to the original petition on November 25, 1981, l
"NRC Staff Response to Petition to Intervene and Request for l
Hearing of Society for the Protection of the Environment of i
Southeastern New Hampshire" (hereafter " Staff Response").
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l DESIGNATED ORIGINAL 8201150244 820112 o
G PDR Certified By tk;< M
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PDR ADOCK 05000443 j'O sf
- The Staff does not oppose petitioner's motion to amend, inasmuch as 10 C.F.R. 9 2.714(a)(3) expressly permits amendments to intervention petitions without approval of the presiding officer at any time up to fifteen days prior to the first or special prehearing conference held to consider intervention matters.
The submittal by petitioners of the affidavits supplements the original petition to intervene, and accordingly, merits the following supplemental discussion.
II.
FURTHER DISCUSSION OF THE PETITION IN LIGHT OF 10 C.F.R. 6 2.714 J
As was pointed out in the November 25, 1981 Staff response / a 2
petitioner must state the particular aspects of the subiect matter under review which the petitioner seeks to litigate.
It necessarily.follows, therefore, that if that subject matter is not within the scope of a licensing proceeding, it cannot be raised.2/
Here, petitioner's focus is expressly limited to the " proposed East-West and North-South transmission lines as they emanate from the SeabrookStation."A/ Particularly, petitioner's general concerns may 2/
See " Staff Response," pp. 2, 4-5 (November 25,1981).
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Id., p. 5, n. 5.
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" Petition to Intervene in the License Application for Seabrook, New Hampshire Station," p. 2 (November 10,1981).
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. be divided into three categories:
the route of the transmission lines (including how that route bear upon aesthetics and recreation), the fact that the route is stated to border or affect alleged historical or archeological areas, and the health effects of "the proximity of the proposed transmission line to present dwellings."E The question at this stage of the proceeding is whether these transmission-line-related concerns constitute aspects "of the subject matter of the proceeding under review."
A.
The Construction Permit Litigation Petitioners have generally referred to the Seabrook East-West and North-South transmission lines without referring to their specific geo-graphical locations, but it appears with reasonable certainty that peti-tioners are primarily focusing upon the Seabrook-Scobie Pond transmission line and/or the Seabrook-Newington transn.ission line.
It was the Staff's recommendation at the hearings before the licensing board in the construc-tion permit hearing that Applicant's proposed transmission line routings be approved, subject to the exception that with respect to the Seabrook-Scobie line, that Applicants should be required to " dogleg" the line
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around an area known as Cedar Swamp.E In the litigation of the location l
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See Public Service Company of New Hampshire, et al. (Seabrook i
Station, Units 1 and 2), LBP-76-26, 3 NRC 857 at 886 (1976).
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. of this line, there was specific consideration of the Pow Wow River-Cedar Swamp area,U with respect to which petitioner's have now expressed a concern on page two of their petition.
In its initial decision, the licensing board found that Applicant's proposed routes were generally acceptable, but approved the Pow Wow River-Cedar Swamp area dogleg pro-posed by the Staff.
3 flRC at 890.
The litigation of these transmission line routings continued before the Appeal Board, with both the Applicant and an intervenor taking exception to the Staff-recommended route of the Seabrook-Scobie Pond line] which the licensing board approved.
The Appeal Board review of 8
such routings was extensive and included a tour and review of the area.
See 6 f1RC at 82-90. The routes approved by the licensing board were affirmed by the Appeal Board.
Id. These are the routes which are now the subject of the instant petition.
Although there was extensive liti-gation concerning both the Seabrook-Scobie and Seabrook-Newington routes, petitioners did not elect to e"ter the construction permit litigation.
This is so even though petitioners had notice of the planned transmission line corridor since at least "the late 1950's", inasmuch as no less than a dozen of petitioner's affidavits recite the fact that nearby or adja-cent transmission line right-of-ways "were acquired by the Public Service y
See 3 flRC at 880.
8f Public Service Company of flew Hampshire et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 f1RC 33, 82 (1977).
Company in the late 1950's."9/ Having briefly described the previous litigation with respect to the Seabrook transmission lines, it may be helpful to briefly delineate the normal scope of environmentil review at the operating license stage before commenting upon the petition to inter-vene as revised.
B.
Scope of the Environmental Review at the OL Stage Under the Commission's regulations implementing the National Environmental Policy Act (42 U.S.C. 5 4321, et seq.)., the environmental review at the operating license stage is, as a_ general matter, limited to a consideration of relevant information which has arisen since the authorization of the construction permit.E Thus, the Commission has barred reconsideration of matters at the OL stage which were considered at the CP stage for the same facility absent (1) "significant supervening developments having a possible material bearing" upon previously ajudicated issues or (2) "the presence of some unusual factor having special public l
-9/
See Affidavits of James M. Hartwell, Elizabeth P. Hartwell, Ella J.
Currier, Donald E. Currier, Elizabeth A. Currier, Ruth S. Miller, Corinne W. Morse, Priscilla J. Coffin, Willian E. Amsler, Jasper W.
Sewell, Brian T. Griset, Adela J. Griset.
-10/ 10 C.F.R. QG 51.21, 51.23(e); see Union of Concerned Scientists v.
AEC, 499 F.2d 1069, 1079 (D.C. T r. 1974).
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. interest implications." Alabama Power Co. (Farley Nuclear Plant, Units I and 2), ALAB-182, 7 AEC 210, 216 (1974); remanded on other grounds CLI-74-12, 7 AEC 203 (1974). Whereas the Farley decision was posited upon the doctrines of res judicata and. collateral estoppel, other NRC decisions have limited the scope of OL or construction permit amendment proceedings on the jurisdictional ground that the scope cf the OL (or license amendrent) proceeding should not reach back to include matters previously determined in the prior proceeding in the absence of mate-rially changed circumstances or special public interest factors.III In addition, it should be noted that the doctrine of collateral estoppel has been invoked in two relatively recent decisions by two licensing boards.12/ In Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175 (1981), a licensing board applied the doctrine of collateral estoppel defensively, to preclude an intervenor who was not a party in the construction permit proceeding, from raising issues in an OL proceeding that had been previously litigated
-11/ See e.a., Detroit Edison Company et al. 9 NRC 439, 465 (Enrico TermT Ktomic Power Plant), LBP-79 T,7 NRC 7386 (197')) (0L Proceeding) Houston Lighting and Power Company (South Texas Project, Units 1 and 2), LBP-79 1, 9 NRC 459, 464-65 (0L Proceeding); Northern States Power Company (Prairie Island Nuclear Generating Plant. Units 1 and 2), ALAB-455, 7 NRC 41, at 46 n.21 (1976) (CP amendment proceeding limiting environmental inquiry).
Accord, Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 415 (1975); Detroit Edison Comoany (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, (1978).
_1_2/ Both boards were chaired by the same administrative judge, however.
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- attheCPstage.E That board, while recognizing that the equitable doctrine of collateral estoppel had traditionally been applied only when the parties involved were also parties (or privies) in the prior pro-ceeding, nevertheless, on the basis of Parklane Hosiery Company, Inc.
- v. Shore, 439 US 322 (1979), reasoned that since NRC licensing proceed-ings are " notorious", residents in the vicinity of a facility could be held to have had " actual notice of the CP proceeding".
14 NRC at 199-200.
The board also noted that intersenors in Commission proceedings often attempt to broadly litigate any matters which might also concern other residents in the community.
14 NRC at 200.
The breadth of NRC proceed-ings is also expanded by participation by the NRC Staff, the Board stated, which participates to represent the public interest.
I_d.
In a recent decision, Florida Power & Light Company (St. Lucie Plant, Unit No. 2), Docket No. 50-389A, LBP (December 11,1981),
a licensing board, while considering a motion for summary disposition in an antitrust proceeding, gave collateral estoppel effect to a decision by the Fifth Circuit Court of Appeals as well as to a decision by the Federal Energy Regulatory Commission. The licensing board, however, in I
granting a motion for partial summary disposition at the request of a party to an NRC proceeding who had not participated in the proceedings leading to the two aforementioned decisions, stated:
"In any event, the ger.eral rule of Parklane is just that -- a general rule.
The Sup ene Court made clear that federal trial courts -- and by extension, federal agencies -- ultimately exercise 13/ See Cleveland Electric Illuminating Company et al. (Perry Nuclear Toier Plant, Units 1 and 2), LBP-81-24,14 NRC 175, 200 (1981).
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. ' broad discretion' in determining whether to permit offensive collateral estoppel. 439 U.S. at 331.
We look, therefore, to all relevant considerations, and not merely to the matter of whether the proponent of collateral estoppel could easily have joined in the earlier action."
(St. Lucie, supra, Slip Op. at 7).
C.
Specific Aspects of the Petition In light of the above discussion, the question remains as to whether the amended petition satisfies both the standing and aspect requirements of 10 C.F.R. $ 2.714.
In its November 25, 1981 response, the Staff concluded that petitioners had failed to demonstrate the requisite standing because petitioner, an organization, had not identified at least one member who would have standing, and who had been expressly authorized to represent the interests of the organization (NRC Staff Response,p.7).
In its amended petition, affidavits from fifteen resi-dents of South Hampton have been proffered, with the affiants stating that they reside next to or near the transmission line-right-of-way.
All such affidavits authorize the Society for the Protection of the Environment of Southeastern New Hampshire to represent them in this proceeding.
In addition, affidavits have been received from William H.
Carey and Frederick H. Anderson, stating that each is a spokesman for the Society and that each has been authorized to speak on behalf of its members. Although it may have been preferable to have the individual affiants delineate their spokesmen by name, rather than simply delineating their organization, the Staff believes the proffered affidavits satisfy the standing concerns expressed in the Staff Response to the Society's i
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initial petition to intervene.
As to the separate " aspects" requirement of 10 C.F.R. 5 2.714, as stated above, petitioner's concerns with respect to the Seabrook trans-mission lines can be grouped into three categories. As to the third i
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l category, the Staff believes that identification of the environmental effects of the transmission line upon nearby dwellings (and the occu-pants of those dwellings) if related to the operation of those lines would initially appear to satisfy the aspect requirements of 10 C.F.R. 92.714.EI Consistent with the above discussion, however, whether petitioners concerns relating to the siting of the lines constitutes an i
appropriate aspect of the subject matter of this OL proceeding consti-tutes a much more difficult question.
Inasmuch as only a single aspect of the proceeding must be identified by a petitioner, we need not reach at this time the question of whether petitioner's concerns relating solely to the siting of the transmission lines fall within the sub,1ect matter of this OL proceeding. Those issues will be reached and con-sidered in the event that the Society proposes specific contentions relating to the sitino of the transmission lines, as will the adequacy of any proposed contentions regarding the environmental effects of the operation of those lines.
III.
CONCLUSION For the reasons set out above, the Staff believes that the amended petition to intervene of the Society for the Protection of the Environment now satisfies the interest requirements of 10 C.F.R. s 2.714, as well as designates an aspect of this operating license proceeding with respect to M/ In the Susquehanna OL proceeding, the licensing board considered at the evidentiary hearing a contention relating to "the effects of electric fields on living organisms in the vicinity of a 500 kV transmission line. See Pennsylvania Power & Light Company (Susque-hanna Steam Electric Station, Units 1 and 2), unpublished " Memorandum and Order on Pending Motions," p. 14 (May 20, 1981).
. which it wishes.to intervene. The petition, should therefore be granted in accordance with the above discussion.
Respectfully submitted, 1N lv"'St Roy P. Lessy Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 12th day of January,1982 l
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L UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL NEW HAMPSHIRE, et al.
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50-444 OL
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(Seabrook Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE TO THE NRC STAFF TO AMENDMENTS TO PETITION FOR LEAVE TO INTERVENE BY THE SOCIETY FOR THE PROTECTION OF THE ENVIRONMENT OF SOUTHEASTERN NEW HAMPSHIRE 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 12th day of January,1982.
Helen Hoyt, Esq., Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Oscar H. Paris
- Administrative Judge Paula Gold, Asst. Atty. General Atomic Safety and Licensing Board Stephen M. Leonard, Asst. Attorney Panel Jo Ann Shotwell, Asst. Attorney U.S. Nuclear Regulatory Commission Office of the Attorney General Washington, D.C.
20555 Environmental Protection Division One Ashburton Place, 19th Floor Lynn Chong Boston, MA 02108 Bill Corkum Gary McCool Nicholas J. Costello Box 65 1st Essex District Plymouth, NH 03264 Whitehall Road Amesbury, MA 01913 E. Tupper Kinder, Esq.
Assistant Attorney General Tomlin P. Kendrick Environmental Protection Division 822 Lafayette Road Office of the Attorney General P.O. Box 596 State House Annex Hampton, NH 03842 Concord, NH 03301 William S. Jordan, III, Esq.
Robert A. Backus, Esq.
Ellyn R. Weiss, Esq.
116 Lowell Street Harmon & Weiss P.O. Box 516 1725 I Street, N.W.
itanchester, NH 03105 Suite 506 Washington, D.C.
20006
Rep. Arnie Wight Phillip Ahrens, Esq.
State of New Hampshire Assistant Attorney General House of Representatives State House Station #6 Concord, NH 03301 Augusta, ME 04333 s,
Paul A. Fritzche, Esq.
Donald L. Herzberger, MD Public Advocate Hitchcock Hospital State House Station #12 Hanover, NH 03755 Augusta, ME 04333 Edward J. McDermott, Esq.
Wilfred L. Sanders, Esq.
Sanders and McDermott Sanders and McDermott 408 Lafayette Road 408 Lafayette Road Hampton, NH 03842 Hampton, NH 03842 Sen. Robert L. Preston Thomas G. Dignan, Jr., Esq.
State of New Hampshire Senate Ropes & Gray Concord, NH. 03301 225 Franklin Street Boston, MA 02110 Atomic Safety and Licensing Board Panel
- Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Panel
- Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert L. Chiesa, Esq.
Docketing and Service Section*
Wadleigh, Starr, Peters, Dunn &
Office of the Secretary
& Kohls U.S. Nuclear Regulatory Commission 95 Market Street Washington, D.C.
20555 Manchester, NH 03101 Ms. Patti Jacobson 3 Orange Street Newburyport, MA 01950
, (qee s
DeputyAssista(rftChief Roy P. Lessy l
l Hearing Counsel
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