ML20052F205
| ML20052F205 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/10/1982 |
| From: | Lessy R, Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8205120227 | |
| Download: ML20052F205 (10) | |
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O 05/10/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fiMISSION BEFORE THE AT0fi1C SAFETY AND LICENSING BOARD In the Matter of
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PUBLIC SERVICE COMPAtlY OF
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Docket Nos. 50-443 OL - n' NEW HAMPSHIRE, e_t_ al.
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(Seabrook Station, Units 1 and 2)
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s RESPONSE OF THE NRC STAFF TO PROPOSED CONTENTIONS OF SOCIETY
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FOR THE PROTECTION 0F THE ENVIRONMENT OF SOUTHEASTERN'
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NEWHAMPSHIREANDTHE}dWNOFSOUTHHAMPTON,NEWHAMPSHIRE' c.' h x
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On April 29, 1982, the Staff received the " Supplement To Petition To Intervene..." including contentions filed by the Society For The Protection Of The Environment Of Southeastern New Hampshire.
In its pleadiag, the Society noted that the Board had issued a Memorandum and Order dated fiarch 12, 1982 requiring that amendments to petitions to intervene be filed by April 5, 1982, but the Society did not interpret the Board's Order as requiring the filing of contentions in the form of
" supplements" to petitions to intervene. Therefore, in the absence of any relief granted by the Licensing Board, which relief has not heretofore been requested by the Society, the Society's contentions should be evaluated as late-filed contentions in accordance with the DESIGNATED ORIGINAL Certified By Y n.'
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. provisions of 10 C.F.R. 5 2.714b of the Commission's Rules of Practice.I/
In addition, the Staff is also herein responding to the " Amendment To petition For Leave To Intervene of The Town Of South Hampton" and the accompanying "tiotion For Late Entry Of Amendment To Petition To Intervene."
These aforementioned pleadings, which only recently were served upon the Staff, concern the same subject matter of proposed contentions as those of the Society.
Although South Hampton's proposed contentions are also filed late, the reason for tardiness, as stated in the accompanying motion, is a death in the immediate family of the lead attorney for South Hampton in this proceeding. The Staff believes that good cause has therefore been established for the late filing and therefore supports the motion of South Hampton for receipt of its proffered contentions. The proffered contentions of the Society and South Hampton will be discussed below.
II.
DISCUSSION A.
The Society's Contentions i
All of the five contentions filed by the Society concern the location of transmission lines emanating from or going to the Seabrook plant. Although the lines are not specified in the supplemental petition,.
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The factors for evaluatin such late filings, as set forth in 10 C.F.R. 5 2.714(a)(1)(i -(v) are:
good cause for failure to file on time; the availability of other means to protect the petitioner's interest; the extent to which petitioner may be expected to assist in,the development of a sound record; the extent petitioner's i
l interest will be represented by other parties; the extent petitioner's participation will broaden or delay the proceeding.
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1 l the particular line in question appears to be the Seabrook-Tewksbury line.
South Hampton's first contention involves the impact of the transmission line on a ridge known as " Indian Ground Hill." The second contention concerns the impact of the line in "the historic district at the center of the Town of South Hampton." The third contention concerns the impact of the line on the alleged "Jewelltown End Highland historic areas." The fourth contention concerns the affect of such lines upon property values in South Hampton.
The fifth contention concerns
" reasonable alternatives to the present transmission line routes in-l cluding, but not limited to underground placement...."
The Staff opposes each of these proposed contentions for the following reasons.
First, none of the proposed contentions has any basis as required by 10 C.F.R. 5 2.714.
See also Philadelphia Electric Co.
(Peach Bottom Atomic Power Station, Units 2 and 3); ALAB-216, 8 AEC 13 (1974); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 #EC 423, 426 (1973).
Secondly, each of the proffered contentions should not be admitted because it seeks to raise a matter which is not within the scope of issues for an operating license proceeding.
Although the petitioners were not parties to the CP pro-ceeding, the matter of the proposed location of the Seabrook transmission lines was litigated before the licensing b'oard in the construction permit phase of this proceeding. See Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), LBP-76-26, 3 NRC 857, 885 et seq. There, the construction permit licensing board found that Applicants' proposed transmission line routes, including routes about which South Hampton is now complaining, were generally acceptable, but approved t
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the Pow Wow River-Cedar Swamp area dogleg proposed by the Staff.
3 NRC at 890. The litigation of these transmission line routings continued before the Appeal Board.
The Appeal Board review of such routings was extensive and included a tour o' the area and route review of at least part of the routes.
See Public Service Company of New Hampshire, et al.,
(Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 82-90 (1977). The routes approved by the licensing board were affirmed by the Appeal Board Id. Although there was extensive litigation concerning both the Seabrook-Scobie and Seabrook-Newington routes, petitioners did not elect to enter 4
the construction permit litigation to litigate the Seabrook-Tewksbury route.S/ This is so even though petitioners had notice of the planned transmission line corridor since at least "the late 1950's," inasmuch as I
no less than a dozen of petitioner's affidavits recite the fact that i
nearby or adjacent transmission line right-of-ways "were acquired by the Public Service Company in the late 1950's."3/
Under the Commission's regulations implementing the National Environmental Policy Act (42 li.S.C. l 4321, eti seq.), the environmental
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This route was addressed in the Final Environmental Statement on the construction permit. See sections 4.1.2, 9.2.4.
Cf. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 1 & 2), ALAB-673, 15 NRC (April 26, 1982) Slip op, at 11, n.8.
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See Affidavits of James M. Hartwell, Elizabeth P. Hartwell, Ella J.
Currier, Donald E. Currier, Elizabeth A. Currier, Ruth S. Miller, i
Corinne W. Morse, Priscilla J. Coffin, William E. Amsler, Jasper W.
Sewell, Brian T. Griset, Adela J. Griset filed December 7-18, 1981 l
review at the operating license stage is, as a general matter, limited to a consideration of relevant infomation which has arisen since the authorization of the construction permit.b/ Thus, the Commission has, between the parties in Farley, supra, barred relitigation of issues 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 adjudicated issues or (2) "the presence of some unusual factor having special public interest implications." Alabama Power Co. (Farley Nuclear Plant, Units 1 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 of the OL (or license amendment) proceeding should not reach back to include matters previously determined-in the prior proceeding in the absence of materially changed circumstances or special public interest factors.5,/ Such " materially changed circuc' stances" or special public 4/
10 C.F.P,. si 51.21, 51.23(e); see Union of Concerned Scientists v.
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AEC, 499 F.2d 1069, 1079 IO.C. Cir.1974).
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See e.o., Detroit Edison Company et al. 9 NRC'439, 465 (Enrico Fenni Atom W Power Plant), LBP-h -1, 9 NRC 73, 86 (1979) (0L Proceeding);
Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, at 46 n.4 (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 Company (Enrico Femi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 32), 393 (1978).
Cf. Houston Lighting and Power Company (South Texas Project, Units 1 aiid 2), LBP-79-1, 9 NRC 459, 464-65 (0L Proceeding).
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interest factors have not been alleged here.
While there is now some doubt as to whether collateral estoppel can be invoked against a person who was neither a party nor a privy to a litigant in the prior construction permit proceeding,5/ no persuasive reasons have been advanced by the Society as to why the general rule of the Farley decision, suprr should not bar the relitigation of environmental issues involving transmission lines in this operating license proceeding.
See 10 C.F.R. is 51.21, 51.23(e).
In fact, public policy reasons argue against said relitigation.
First, it is doubtful whether persons with actual notice of a proposed transmission line routing should be permitted to wait on the sidelines until after similar issues have been extensively litigated and adjudicated and first raise the issue after the Commission has authorized construction of the lines.
Second, to permit such relitigation, absent the special factors previously discussed, would be both inefficient and likely to cause delays as to the litigation of appropriate OL issues.
For these reasons, the Staff opposes the five contentions proposed by the Town of South llampton.
I B.
Contentions of the Society For Tne Protection Of The Environment Of Southeastern New Hampshire The Society has proposed three contentions. The first contention concerns the route of the transmission lines through the Town of I
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See Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), supra, n.2, Slip Op. at 9-15; see also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 50-51 (1978) (separate opinion of Mr. Sharfman, concurring in part and dissenting in part).
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7 South Hampton, the effect on Indian Ground Hill, and the effect on the Pow Wow River area.
The Staff opposes this contention for the reasons stated above concerning the proposed contentions of the Town of South Hampton. Similarly, and for the same reasons, the Staff opposes.the Society's third proposed contention concerning the effect of the previously approved transmission lines on the Town of South Hampton.
Moreover, no basis for this contention har been included as required by l
the controlling regulation, 10 C.F.R. $ 2.714.
The final contention proposed by the Society reads in its entirety:
The effect that the proximity of the proposed transmission lines to present dwellings in the Town of South Hampton and the proximity would have on the health of the inhabitants of the dwellings.
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The Staff opposes this contention only insofar as it has no basis as required by 10 C.F.R. 5 2.714 and it lacks specificity.
Petitioners should be required to specify in more detail, as well as give a basis, for the allegation that proximity of the proposed transmission lines to present dwellings may have an effect on dwellings or the health of dwelling inhabitants.
In the absence of such required specificity and i
basis, the Staff also opposes this contention.
l III.
CONCLUSION For the reasons stated, th'e Staff opposes the admission of the -
proposed contentions of the Society For The Protection Of The l
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. Environment Of Southeastern New Hampshire as well as the proposed contention of the Town of South Hampton.
Respectfully submitted, Roy P. Lessy 0 Deputy Assistant Chief Hearing Counsel Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 10th day of May, 1982.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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.
50-444 OL 4
(Seabrook Station, Units 1 ar.d 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF THE NRC STAFF TO PROPOSED 1
CONTENTIONS OF SOCIETY FOR THE PROTECTION OF THE ENVIRONMENT OF SOUTH-EASTERN NEW HAMPSHIRE AND THE TOWN OF SOUTH HAMPTON, 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 10th day of May, 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 Boa.rd Stephen M. Leonard, Asst. Attorney Panel Jo Ann Shotwell, Asst. Attorney U.S. Nuclear Regulatory Commission Office of the Attorney General t
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 A~ esbury, MA 01913 m
E. Tupper Kinder, Esq.
Assistant Attorney General Beverly Hollingworth Environmental Protection Division 7 A Street Office of the Attorney General Hampton Beach, NH 03842 State House Annex Concord, NH 03301 i
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, 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.
Manchester, NH 03105 Suite 506 Washington, D.C.
20006 Ms. Patti Jacobson Phillip Ahrens, Esq.
3 Orange Street Assistant Attorney General Newburyport, MA 01950 State House Station #6 Augusta, ME 04333 Docketing and Service Section*
Donald L. Herzberger, MD Office of the Secretary Hitchcock Hospital U.S. Nuclear Regulatory Commission Hanover, NH 03755 Washington, D.C.
20555 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.
Wadleigh, Starr, Peters, Dunn &
& Kohls 95 Market Street Manchester, NH 03101 Robert G. Perlis Counsel for NRC Staff
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