ML20054C676
| ML20054C676 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/16/1982 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8204210491 | |
| Download: ML20054C676 (7) | |
Text
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i.
before the 4
ATOMIC SAFETY AND LICENSING BO RD O
p I
)
' 7, : o In the Matter of
)
)
PUBLIC SERVICE COMPANY OF NEW
)
HAMPSHIRE, et al.
)
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Docket Nos. 50-443-OL (Seabrook Station, Units 1 & 2)
)
50-444-OL
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i APPLICANTS' ANSWER TO THE MOTION J!kkgo s,
g OF THE TOWN OF SOUTH HAMPTON FOR LATE ENTRY OF AMENDMENT
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co TO PETITION TO INTERVENE 7/
p tgjED AND APPLICANTS' RESPONSE TO AMENDMENT 'd-.
in']<)1982r+. $
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j TO PETITION FOR LEAVE TO
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\\',,i e / j~ =:n INTERVENE OF THE TOWN OF
/g SOUTH HAMPTON
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l On April 13, 1982, the Town of South Hampton (South l
Hampton) filed a " Motion for Late Entry of Amendment to Peti-tion to Intervene" accompanied by an " Amendment to Petition for Leave to Intervene".
The motion for late filing recites that the reason for the amendment being filed later than the time allowed by this Board's special prehearing conference order issued March 12, 1982 is a death in the immediate family of the attorney in charge of this matter.
The applicants submit q
l that the foregoing constitutes good cause for the late filing l
and that the motion should be allowed.
1
'C)$O3 Turning now to the amendment to the petition:
In their t
i answer to the original South Hampton petition, the Applicants j
//
f noted that it appeared that the only contentions which 8204210491 820416 PDR ADOCK 05000443 C
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t South Hampton wanted to raise lay in the area of transmission line routing.
See Answer of the Applicants to the Petition to Intervene of the Town of South Hampton (Dec. 1, 1981).
The amendment to the petition which sets forth five contentions confirms that understanding.
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 liti-gated at length before the Licensing Board in the c'onstruction permit proceeding.
Public Service Co. of New Hampshire (Sea-brook 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 Applicants and denied by the Commission.
Id.,
The Applicants then sought re-view in the Court of Appeals which affirmed the Appeal Board's decision.
Public Service Company of New Hampshire v. URC, 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 con-struction 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 con-struction permits stage than the routes of Seabrook's transmission l
lines.
No significant intervening change in circumstances would warrant relitigation of this issue.
See Houston Light-ing 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 South Hampton was not a party to the con-struction permit proceeding.
But this avails South Hampton nothing.
As the Licensing Board in Cleveland Electric Illuminat-ing Company (Perry Nuclear Power Plant, Units 1 & 2-), LBP-81-24, 14 NRC 175, 199-200 (1981) recently observed:
" 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, resi-dents 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 ad-mitted play a different role in Commission proceedings than in many other kinds of litigation.
Although they are admitted to the proceeding because of their own inter-est, often because of residence near to the plant, their safety and environmental con-cerns often are quite general, as they were in the construction stage of this proceeding.
Hence, while intervenors do not have any ob-ligation to represent persons who are not parties, they often attempt to litigate gen-erally any concerns which might also bother --
other residents in the community.
Further-more, even when intervenors' ability to broadly represent the community may be called into question, it is the obligation of the Staff, which always participates, to represent the public interest.
In ad-dition, the Commission's staff attempts to protect the public further by conducting an independent safety and environmental review that is required by statute.
On the other hand, Applicant in a construction permit proceeding litigates -
all the issues that are raised.
At the conclusion of the proceeding, it may ob-i tain a license to construct the facility.
It often ir. vests over $1 billion in re-liance on the license.
Of course, Appli-cant knows that it is continuously re-sponsible for revising its plans in light of current knowledge and that it may face a serious challenge at the construction
- permit stage.
However, its reliance on __
its construction license is substantial.
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 l
even when new parties have intervened in I
the latter proceeding.
See Northern States Power Company (Prairie Island Nu-clear Generating Plant, Units 1 and 2)),
ALAB-455, 7 NRC 41, fn. 4 at 46 (1978) i (in a proceeding to amend a license to enlarge a spent fuel pool, the environ-
' mental inquiry may be limited to the consequences of the amendment)."
l l
- Probably should read " licensing",
i __
CONCLUSION The motion to allow a late filed amendment should be allowed.
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 April 16, 1982 (617) 423-6100 CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the applicants herein, hereby certify that on April 16, 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 Mr. Tomlin P. Kendrick Executive Director E. Tupper Kinder, Esquire Coastal Chamber of Commerce Assistant Attopney General of : Jew Hampshire Office of the Attornev General c22 lafayette Road 208 State House Annex
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P.O. Box 596 Concord, NH 03301 Hampton, NH 03842 Mr. Robert F. Preston Paul A.
Fritzsche, Esquire 226 Winnacunnet Road General Counsel Hampton, NH 03842 Publi: Advocate State House Station 112 Wilfred L. Sanders, Jr., Esquire Augusta, ME 04333 Sanders and McDermott Professional Association Philip Ahrens, Esquire 408 Lafayette Road Assistant Atterney Genera' Wampton, 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 Envircnmental Protection Division Public Protection Bureau Atomic Safety and Licensing Department of the Attorney General Board Panel One Ashburton Place, 19th Floor U.S. Nuclear Regulatory Commission Bosten, MA 02108 Washingten, 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
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 406 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 Sex 65 Plymouth, NH 03264 Helen Hoyt, Chairperson Atcmic Safety and Licensing 5 card Panel U.S. Nuclear P.egulatory 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.
Tnomas G.
Dignan, Jr.
.