ML20052B803

Response in Opposition to Soc for Protection of Environ of Southeastern Nh 820421 Suppl to Petition to Intervene.Suppl in Fact Is Motion to File Contentions Late & Statement of Contentions.Certificate of Svc Encl

ML20052B803
Person / Time
Site:	Seabrook
Issue date:	04/26/1982
From:	Dignan R, Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8205030595
Download: ML20052B803 (7)

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UNITED STATES OF AMERICA 'N 28 th.s (t) \

NUCLEAR REGULATORY COMMISSION. 4' before the gg 'l ATOMIC SAFETY AND LICENSING BOARD l.I[4yj g g

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In the Matter of )

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PUBLICLSERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL

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(Seabrook Station, Units 1 and 2) )

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APPLICANTS' RESPONSE TO THE " SUPPLEMENT TO PETITION TO INTERVENE PURSUANT TO 10 C.F.R. S 2.714(b) CONTENTIONS WHICH PETITIONER SEEKS TO HAVE LITIGATED" FILED BY THE SOCIETY FOR THE PROTECTION OF THE ENVIRONMENT OF SOUTHEASTERN NEW HAMPSHIRE Under date of April 21, 1982 The Society for the Protection of the Environment of Southeastern New Hampshire (the Society) filed a " Supplement to Petition to Intervene Pursuant to 10 C.F.R.

S 2.714 (b) Contentions Which Petitioner Seeks to Have Litigated" (Society's Supplement). The Society's Supplement is in reality two pleadings (1) a motion to file contentions late and (2) a statement of contentions. The Applicants respond to these two aspects of the document seriatim.

A. As to the Motion to File Late The reason given for the late filing is that the Society

~ interpreted the Special Prehearing Conference Order as not requiring the filing of contentions by April 6, 1982. This 820 50s o s5 r D60[oj,

reason might have had some merit had the Society not been served, as it was, with New Hampshire's " Motion for Additional Time for Filing Supplement to Petition to Intervene" wherein the New Hampshire Attorney General states:

"This Order requires the State and the Attorney General to file their contentions thirty (30) days prior to the May 6, 1982 filing, which filing deadline is April 6, 1982."

This filing, made on March 24, 1982, and the NECNP " Request for Clarification" filed on April 2, 1982 which revealed that the Chairperson had advised Staff Counsel that contentions were required, also served on the Society, at a minimum put the So-ciety on notice1! as to the fact that contentions would be re-quired long before April 21, 1982. The motion should be denied.

B. As to the Merits In their answer to the original Society petition, the Appli-cants noted that it appeared that the only contentions which the Society wanted to raise lay in the area of transmission line routing. See Answer of the Applicants to the Petition to Inter-Vene of the Society for the Protection of the Environment of Southeastern New Hampshire (Dec. 1, 1981). The amendment to the petition which sets forth their contentions confirms that under-standing. For the reasons set forth below, the Applicants say that the petition, as amended, should be denied.

The routing of Seabrook's transmission lines was litigated at length before the Licensing Board in the construction permit 1/ If any be required. We fail to see how an order which states that the conference will permit identification of issues (which arise only from contentions in NRC practice) could be misunderstood as claimed by the Society and other petitioners horcin.

. proceeding. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-76-26, 3 NRC 857, 885-90 (1976).

After extensive briefing and argument, the Licensing Board's decision was affirmed by the Appeal Board. Id., ALAB-422, 6 NRC 33, 82-90 (1977). Review of this issue was sought by the Appli-cants and denied by the Commission. Id., CLI-77-22, 6 NRC 451 (1977). The Applicants then sought review in the Court of Ap-peals which affirmed the Appeal Board's decision. Public Ser-Vice Company of New Hampshire v. NRC, 582 F.2d 77 (1st Cir. 1978).

Applicants' petition for a writ of certiorari was then denied by the Supreme Court of the United States. 439 U.S. 1046 (1978).

"[A]n operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construc-tion permit stage." Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), CLI-74-12, 7 AEC 203 (1974). Nothing was more fully " ventilated" and " resolved" at the construction permits

-stage than the routes of Seabrock's transmission lines. No sig-nificant intervening change in circumstances would warrant re-litigation of this issue. See Houston Lighting and Power Co.

(South Texas Project, Units 1 & 2), LBP-79-87, 10 NRC 563 (1979),

affirmed summarily, ALAB-575, 11 NRC 114 (1980).

It is true that the Society was not a party to the construc-tion permit proceeding. But this avails the Society nothing.

As the Licensing Board in Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 s 2), LBP-81-24, 14 NRC 175, 199-200 (1981) recently observed:

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" Commission licensing is dissimilar from many other forms of litigation. Unlike many other kinds of cases, licensing cases are notorious. Their existence is not merely noticed in the federal register.

Universally, plans to build a nuclear plant receive widespread news coverage; and the licensing proceedings themselves also are extensively covered. Consequently, residents living in the area of a proposed plant have actual notice rather than just constructive notice. Furthermore, even late petitioners with serious concerns and good cause for late filing are commonly granted intervention.

See, e.g., Public Service Company of Oklahoma Associated Electric Cooperative, Inc., et al.

(Black Fox, Units 1 and 2), LBP-77-17 (March 9, 1977).

In addition, intervenors who are admitted play a different role in Commission proceedings than in many other kinds of litigation. Al-though they are admitted to the proceeding be-cause of their own interest, often because of residence near to the plant, their safety and en-vironmental concerns often are quite general, as they were in the construction stage of this proceeding. Hence, while intervenors do not have any obligation to represent persons who are not parties, they often attempt to litigate generally any concerns which might also bother other residents in the community. Furthermore, even when intervenors' ability to broadly rep-resent the community may be called into ques-tion, it is the obligation of the Staff, which always participates, to represent the public interest. In addition, the Commission's staff attempts to protect the public further by con-ducting an independent safety and environmental review that is required by statute.

On the other hand, Applicant in a construc-tion permit proceeding litigates all the issues that are raised. At the conclusion of the pro-cceding, it may obtain a license to construct the facility. It often invests over $1 billion I in reliance on the license. Of course, Appli- l cant k. iws that it is continuously responsible J for revising its plans in light of current knowledgeandthatitmaypa a serious chal-lenge at the construction 2 permit stage. How-ever, its reliance on its construction license is substantial.

2/ Probably should read " licensing".

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When the Board balances the equities, it concludes that collateral estoppel can properly be applied so that issues decided at the construction permit stage need not be rehashed at the licensing permit stage even when new parties have intervened in the latter proceeding. See Northern States Power Company (Prairie Island Nuclet-y Generat-ing Plant, Units 1 and 2)), ALAB-455, 7 NRC 41, fn. 4 at 46 (1978) (in a proceeding to amend a license to enlarge a spent fuel pool, the en-vironmental inquiry may be limited to the con-sequences of the amendment)."

Perhaps in an attempt to avoid the force of the above reasoning, the Society states its last two contentions in terms of offects; effects of " proximity . . . to present dwellings" in

-contention B and " esthetic" effects in Contention C. Both of these effects are inherently part of routing (as opposed to operation) and were open for litigation as part of the routing issue at the Construction Permit stage. The petition, as amended, should be denied.

CONCLUSION The motion to allow a late filed amendment should be denied.

The petition to intervene as amended should be denied.

Respectfully submitted, s/ Thomas G. Dignan, Jr.

s/ R. K. Gad III s/ Ropes & Gray Thomas G. Dignan, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 April 26, 1982 4

CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the applicants herein,'hereby certify that on April 26, 1982 I made. service of the within document by mailing copies thereof, postage prepaid, to:

Robert A. Backus, Esquire Mr.- Arnie Wight, Chairman 116 Lowell Street House Science and Technology P.O. Box 516 Committee Manchester, NH 03105 House of Representatives Concord, NH 03301 Mr. Tomlin P. Kendrick Executive Director E. Tupper Kinder, Esquire Coastal Chamber of Commerce Assistant Attorney General of New Hampshire Office of the Attorney General 822 Lafayette Road 208 State House Annex P.O. Box 596 Concord, NH 03301 Hampton, NH 03842 Mr. Robert F. Preston Paul A. Frit: sche, Esquire 226 Winnacunnet Road General Counsel Hampton, NH 03842 Public Advocat<-

State House S+ ation 112 Wilfred L. Sanders, Jr., Esquire Augusta, ME 04333 Sanders and McDermott Professional Association Philip Ahrens, Esquire 408 Lafayette Road Assistant Attorney General Hampton, NH 03842 Department of the Attorney General Roy P. Lessy, Jr., Esquire Augusta, ME 04333 Office of the Executive Legal Director Jo Ann Shotwell, Esquire U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C. 20555

' Environmental Protection Division Public Protection Bureau Atomic Sr.fety and Licensing Department of the Attorney General Board Panel One Ashburton Place, 19th Floor U.S. Nuclear Regulatory Commission Boston, MA 02108 Washington, D.C. 20555 William S. Jordan, III, Esquire Atomic Safety and Licensing Appeal Harmon & Weiss Board Panel 1725 I Street, N.W. U.S. Nuclear Regulatory Commission Suite 506 Washington, D.C. 20555 Washington, D.C. 20006

s Donald L. Herzberg, M.D. Ms. Patti Jacobson George Margolis,.M.D. 3 orange Street Hitchcock Hospital Newburyport, MA 01950 Hanover, NH 03755 Edward J. McDermott, Esquire Sanders and McDermott Professional Association 408 Lafayette Road Hampton, NH 03842 Robert L. Chiesa, Esquire Wadleigh, Starr, Peters, Dunn & Kohls 95 Market Street Manchester, NH 03101 Rep. Nicholas J. Costello Whitehall Road Amesbury, MA 01913 Cooperative Members for Responsible Investment Box 65 Plymouth, NH 03264 Helen Hoyt, Chairperson Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Oscar H. Paris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 s/ Thomas G. Dicnan. Jr.

Thomas G. Dignan, Jr.

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