ML20080H142

Response Opposing Jf Doherty 830906 Petition to Intervene. Five Factors for Late Intervention Not Met.Certificate of Svc Encl

ML20080H142
Person / Time
Site:	Seabrook
Issue date:	09/19/1983
From:	Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8309210152
Download: ML20080H142 (8)

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p Dated: , September 19, 1983 80CKETED USNRC 13 SP 20 P250 UNITED STATES OF AMERICA FF E OF 3.E9 7 '

NUCLEAR REGULATORY COMMISSIO M Y! N. .[ ' '

before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF NEW ) Docket Nos. 50-443 HAMPSHIRE, et al. ) 50-444

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(Seabrook Station, Units 1 & 2) )

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APPLICANTS' RESPONSE TO JOHN F. DOHERTY'S PETITION .

FOR LEAVE TO INTERVENE l Under date of September 6, 1983, John F. Doherty filed an admittedly late-filed petition for leave to intervene in this proceeding. Mr. Doherty's petition recites that since June 22, 1983, he has lived in Boston, Massachusetts, having lived in Texas prior to June 1, 1983; that he travels i

" frequently" on Route 95 within three miles of Seabrook Station; that he uses the Seabrook area for recreational purposes; that he believes some of the fish he frequently j

eats is caught in waters within 50 milas of the Seabrook site; that he is a ratepayer of Boston Edison which he l alleges purchases power from one of the Seabrook sponsors 8309210152 830919 7)

PDR ADOCK 05000443 PDR O

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and on the basis of the foregoing has standing to intervene.

By his petition he seeks to inject into the proceeding a single issue viz. that consideration of an operating license for Seabrook #2 is premature at this time and violates 10 CFR S 5).57(a)(1).

ARGUMENT The late-filed peti'tlon must be judged under the criteria set forth in 10 CFR $3 2.714(a)(1), each of which is discussed below.

(i) Good cause, if any, for failure to file on time The petitioner alleges two justifications for his failure to file the petition until this date. He attempts to avoid the 19-month period between November 18, 1981 (the last date for filing petitions pursuant to the original notice, 46 Fed. Reg. 51331 (Oct. 19, 1981)) to June 23, 1983, by pointing out his lack of standing by virtue of residence until that date. However, newly-acquired standing does not of itself justify belated intervention. Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 241 (1980); Carolina Pcwer & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979). He seeks to justify delaying from June 23, 1983 to September 6, 1983, by virtue of the alleged fact that various perceptions he had served to " dis-alert" him. However, the fact that a putative s

s petitioner allowed himself to be lulled by misperceptions of various facts or events into permitting time to pass before intervening is not good cause for failure to make a timely filing. See Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 796-98 (1977); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-440, 6 NRC 642, 645 (1977); Consolidated Edison Co. (Indian Point Station, Unit No. 2), LBP-82-1, 15 NRC 37, 39-40 (1982).

(ii) The availability of other means whereby the petitioner's interest will be protected The sole inquiry here is into the availability of other l fora in which the petitioner himself can undertake the l

protection of his interests. Houston Lighting & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 513 at n.13 (1982). To the extent his interest is economici there are rate proceedings. To the extent his concerns are unarticulated safety concerns, we would agree there are no other available fora.

iii) The extent to which petitioner's participation may reasonably be expected to assist in developing a sound record Mr. Doherty makes no relevant showing here. He says he participated (in some unstated capacity) in another NRC proceeding from 1978-1982. He states that admission of his contention and taking evidence on it will " improve" and

" strengthen" the record. It is his participation (not the injection of his contention) that must be demonstrated to be

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of assistance in developing a record and the contribution must be in the form of evidence not asserted legal or other

. hearing skills. ALAB-671, supra. Indeed, at 513, n.14, he describes no evidence which he claims he will adduce.

(iv) The extent t o which the petitioner's interest will be represented by existing parties We concur that no other party has raised the specific issue Mr. Doherty wishes to raise. However, his " interest" i.e. that of a resident within 40-50 miles of the plant is well represented by two private intervenor groups, SAPL and NECNP, with numerous members having thd same " interest".

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding If, as here, the petitioner is extremely late, the most important factor is the delay factor. Detroit Edison Co.

(Greenwood Energy Center, Units 2 & 3), ALAB-476, 7 NRC 759, 761-62 (1978). Furthermore, this proceeding has concluded phase 1 of the evidentiary hearing and while the filing of contentions is still open in the area of emergency planning, the time for filing and settling safety issues is long past.

In such circumstances the Board should be very leery of permitting this petitioner to inject himself and wholly new .

claims into this proceeding. ALAB-671, supra, at 511, South Carolina Electric and Gas Co. (Virgil C. Sumner Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 886 (1981).

Furthermore, he has provided "no basis for judging hcw much

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.e time might be ncessary for pre-trial preparation (including possible discovery) in connection with [his issue]", ALAB-671, supra at 514.

CONCLUSION The petition should be denied.

l Respectfullgsubmitted,

/r -- - j frsaa Thomas G. Dignan, Jr.

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

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FOOTNOTE 2

Economic interests do not forr.: a basis for standing. ALAB-582, supra at 242.

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CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on September 19, 1983, I made service of the within document by malling copies thereof, postage prepaid, to:

Helen Hoyt, Chairperson Brian P. Cassidy, Esquire Atomic Safety and Licensing Regional Counsel Board Panel Federal Emergency Management U.S. Nuclear Regulatory Commission Agency - Region I Washington, D.C. 20555 442 POCH Boston, MA 02109 Dr. Emmeth A. Luebke William S. Jordan, III, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 1725 I Street, N.W.

U.S. Nuclear Regulatory Commission Suite 506 Washington, DC 20555 Washington, DC 20006 Dr. Jerry Harbour George Dana Bisbee, Esquire Atomic Safety and Licensing Assistant Attorney General i Board Panel Office of the Attorney General U.S. Nuclear Regulatory Commission 208 State House Annex Washington, DC 20555 Concord, NH 03301 Atomic Safety and Licensing Roy P. Lessy, Jr., Esquire Board Panel Office of the Executive Legal i U.S. Nuclear Regulatory Commission Director Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Appeal Robert A. Backus, Esquire Board Panel 116 Lowell Street U.S. Nuclear Regulatory Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Anne Verge, Chairperson Assistant Attorney General Board of Selectmen

! Department of the Attorney Town Hall i General South Hampton, NH Augu sta , ME 04333 1 David R. Lewis, Esquire Jo Ann Shotwell, Esquire

Atomic Safety and Licensing Assistant Attorney General I

Board Environmental Protection Bureau U.S. Nuclear Regulatory Commission Department of the Attorney General Washington, DC 20555 One Ashburton Place, 19th Floor Boston, MA 02108

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Mr. Charles Cross, Esq. Brentwood Board of Selectmen Shaines, Madrigan, & McEachern R.F.D., Dalton Road 25 Maplewood Avenue Brentwood, NH 03833

. .P.O. Box 366 Portsmouth, NH 03801 State Rep. Roberta C. Pevear Calvin A. Canney, City Manager Drinkwater Road City Hall, 126 Daniel Street Hampton Falls, NH 03844 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Patrick J. McKeon RED 1 Selectmen's Office East Kingston, NH 03827 10 Central Road Rye, NH 03870 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Board of Washington, DC 20510 Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Town Manager's Office Richard E. Sullivan, Mayor Town Hall - Friend Street City Hall Amesbury, MA 01913 Newburyport, MA 01950 Ms. Diana P. Randall Donald E.. Chick, Town Manager 70 Collins Street Town of Exeter Seabrook, NH '03874 10 Front Street Exeter, NH 03833 Senator Gorden J. Humphrey One Pillsbury Street Concord, NH 03301 (Attn: Herb Boynton) t

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