ML20082D928

Brief Supporting Intervenor Notice of Appeal of LBP-91-28.* Seacoast Anti-Pollution League Appeals Decision of Commission Rendered 910618 Denying Standing to Intervene in Transfer of Ownership Interest in Facility

ML20082D928
Person / Time
Site:	Seabrook
Issue date:	07/23/1991
From:	Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC COMMISSION (OCM)
References
CON-#391-12047 LBP-91-28, OL, NUDOCS 9107300137
Download: ML20082D928 (10)

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!an!_ il:P 10 hrI UNITED STATES OF AMERICA '91 ,P 25 l1:17 NUCLEAR REGULATORY COMMISSION .

i DEFORE Tile COMMISSION lo Kenneth M. Carr, Chairman H' Thomas M. Roberts Kenneth C. Rogers James H. Curtiss*

Forest Remick*  !

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In the Matter of I

)

PUBLIC SERVICE COMPANY OF

)

)

Docket No. 50-443-OL (Offsite Emergency

% -Od NEW !!AMPSilIRE, et al. ) Planning Issues)

(Seabrook Station, Unit 1) )

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? l BRIEF SUPPORTING INTERVENOR'S NOTICE OF APPEAL OF LDP-91-28 i l l

l-SEACOAST ANTI-POLLUTION LEAGUE i

Robert A. Backus, Esquire BACKUS, MEYER & SOLOMON L 116 Lowell Street l P.O. Box 516 l ,. Manchester, N11 03105 4

9107300107 910723 3 PDR ADOCK 0500 ty O) i

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July 23, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION l

Kenneth M. Carr, Chairman i Thomas M. Roberts Kenneth C. Rogers James R. Curtiss* 1 Forest Remick*

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) i In the Matter of )

) Docket No. 50-443-OL

-PUBLIC SERVICE COMPANY OF ) (Offsite Emergency NEW HAMPSHIRE, et al. ) Planning Issues)

(Seabrook Station, Unit 1) ) l

)

BRIEF SUPPORTING INTERVENOR'S NOTICE OF APPEAL OF LBP-91-28 Petitioner, Seacoast Arati-Pollution League, (SAPL), appeals the decision of the Nuclear Regulatory Commission, Atomic Safety and Licensing Board, rendered June 18, 1991, which denied SAPL standing to_ intervene in the transfer of Public Service Company of New Hampshire's (PSNH) ownership interest in Seabrook Nuclear Station to Northeast Utilities Company (NU).

BACKGROUND SAPL is an organization which represents the interests of citizens in the seacoast areas of New Hampshire and northeastern Massachusetts, most of whom reside within the ten-mile emergency

• planning zone of the Seabrook Nuclear Power Plant. Due to their location, these citizens stand to be profoundly affected by any increase in risk which would be caused by the proposed license

amendment. The amendment would allow NU to acquire PSNH's ownership interest in Seabrook Nuclear Station, through a newly-created and wholly-owned NU subsidiary, North Atlantic Energy Corporation (NAEC).

SAPL socks to intervene in the transfer of PSNH's ownership interest in Seabrook Nuclear Station to NU. NU is currently under NRC investigation regarding its unfair treatment of employees who are nuclear whistleblowers at NU's Millstone Power Plant.

Specifically, the NRC is investigating a pattern of intimidation and harassa.'at by NU management of Millstone employees reporting to the NRC potential violations of nuclear regulations by NU.

Additional concern over NU's commitment to safely run the Millstono plant is evidenced by the NRC's Systematic Assessment of Licensee Performance (SALP) Report of January 28-29, 1991, concerning a special inspection conducted in July 1989. The SALP report concluded that there woro " weaknesses in [NU's] sufficiency reporting method and there appears to be a reluctance on the part of some employees to use formal procedures and their line management for recording deficiencies." See SALP Report Nos. 50-245/89-99, 50-336/89-99, 50-336/89-99; 50-423/89-99, III. G.

Safety Assessment / Quality Verification of Millstone. The conclusion of the SALP Report was that despite corrective actions, NU "has not been totally effective in satisfactorily resolving

• - some employee concerns . . . the NRC is not confident that root

[

causes of these issues have been identified and resolved by (NU)."

Id.

SAPL avers that the record casts doubt on NU's commitment to safely and conscientiously run the Millstone nuclear facility. In

. its Memorandom and Order of June 18, 1991, the Commission denied SAPL's Petition for Leave to Intervene on the grounds that SAPL lacked standing.

SAPL treated its Appeal of the Commision's denial of standing as an Appeal to the Commission from an initial decision. Hence, SAPL filed its Notice of Appeal on June 28, 1991, pursuant to 10 CFR 2.762(a). SAPL believed that, pursuant to said CFR provisions, it had 50 days to file an accompanying brief, or until July 28, 1991, 10 CFR 2.762(b). SAPL is now aware that its accompanying brief would have been due on the date its Notice of Appeal was filed, June 28, 1991. The mix-up in dates was due to an oversight, and SAPL's long standing practice of filing briefs in the still not final operating license procedure. SAPL avers that in light of its long standing status as an intervenor in proceedings regarding the Seabrook plant, as well as the fact that its Notice of Appeal was timely filed, the failure to file a supporting brief simultaneously with its Notice of Appeal ahould not foreclose the Commission's consideration of this brief.

SUMMARY

OF ARGUMENT SAPL has clearly demonstrated an injury-in-fact which falls within the zone of interests protected by the scope of the proceeding herein.

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4 ARGUMEILT It is not disputed that, in determining whether petitioner may intervene in this proceeding, judicial concepts of standing will be employed. Memorandum and Order at 3-4. The first part of

. petitioner's establishment of standing relates to its ability to demonstrate " injury-in-fact". Additionally, petitioner's injury must. arguably be within the zone of interests protected by the statutes covering the particular proceeding. Sierra Club v.

Morton, 405 U.S. 727, 733 (1972); see also, Metropolitan Edison Cat (Three Mile Island Nuclear Station, Unit 1), 18 NRC 327, 332 (1983).

The Supreme Court, in Eierr3 Club v. Morton, p_qpm , said that: "the ' injury-in-fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Id., at 734-735. Further explaining this standard, the Court in United States v. SCRAP, 402 U.S. 669 (1973) opined:

In interpreting ' injury-in-fact' we made it clear that standing was not confined to those who could show economic ' harm', . . .

nor, we said, could the fact that many persons share the injury be sufficient reason to disqualify from seeking review of an agency's action any person who had in fact suffered injury . .

In pierra Cljlb, thouqh, we went on to stress the importance of demonstrating that the party seeking review be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from l

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becoming no~more than a vehicle for the vindication of the value interests of concerned bystanders.

Id.-at 686-87.

a- . Petitioner-SAPL is a citizens organization representing the

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interests of citizens-who reside in-the seacoast areas of New

j-.! ,

~ Hampshire and northeastern Massachusetts. As noted in SAPL's Petition to-Intervene, most'of the citizens represented 31ve within the ten-mile emergency planning zone for the Seabrook Station. - By virtue-or their 1ccation, any increased risk in the operation of the-Seabrook facility will result in harm'to those residents within the emergency planning zone.

Petitioner has alleged that the' injury to its members will be incurred by. reason of the change in ownership of Seabrook from current owner PSNH to' proposed owner NU,_through NU subsidiary NAEC. As a-basis for its safety concerns, petitioner cited NRC l-investigations into allegations of harassment of NU employees by t

NU management where-said employees reported violations on the part of NU.in the management of the Millstone _ plant. As;further basis

for concern, petitioner noted the SALP_Reporttof January, 1991-

, assessing-the safety.of Millstone, a report _which was unfavorable l

to NU.

SAPL asserts these potentially hazardous conditions at the Millstone Nuclear Station to1 point out that the management of NU-is deficient in its ability to~ safely and effectively run a l

nuclear-power generating facility. If-the proposed' license amendment is granted, NU will take over a.significant portion of

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l Seabrook Huclear Station. Clearly, from its track record thoro is concern over not only NU's ability but also its commitment to run a safo and officient facility. The fact that Nit" will be tho actual owner of tho facility makes no difference as it is a wholly owreed and complotoly controlled subsidiary of NU. The increased risk which will occur if HU is to tako over Soabrook poses a very real harm to citizens of the Seacoast who are represented by SAPL.

In its Memorandum and Order of Juno la, 1991, the Commission notes that it is " constrained in (its) review to considor only concerns involv!ng that transfer . . . (and) allegations concerning NRC investigation of regulatory violations by a parent organization at another licensed facility (Millstono) have no place and cannot be reviewed in the instant proceeding."

Memorandum at 4-5. This rationale on the part of the Commionion, however, misses the point that SAPL raises in its petition.

Specifically, SAPL is not bringing up issues concerning NU management of Millstone for any type of agency revi6W in this proceeding. Rather, SAPL raises the issue as it relates to NU's inability or lack of commitment to aafoly run a nuclear power plant, due to its long standing management practices concerning treatment of those who bring forward safety allegations.

4 The Commission also dictates that the pending investigation i rto NU managemant would not be germano to licensing i ssues "even if the amendment application directly involved NU and concerned applications of ownership or operational responsibility at

Seabrook." Homorandum at 5. SAPL is hard pressed to comprehend how the proposed amendment does not directly involve NU due to the inv- ...mont of NAEC, NU's wholly owned and fully controlled subsidiary. SAPL contendo that NAEC is but one organ of the ontity NU and, as such, rondern NU an integral part of the proposod amendment.

Thus, SAPL avers that the failure of NU to safely run its M111stono nucioar facility as evidenced by more than one pending NRC invostigation, raises safety concerna on the part of soacoast residents within the ten-mile omorgoney planning zona of the Seabrook Station. If a hearing revoals that the NU corporate culturo is not fully committod to nuclear safety, a decrease in the safory of Seabrook Station is likely to occur if and when the NU takeover is offectiva, notwithstanding the creation of NAEC as the owner of record.

Thus, there is more tc petitionor's pleadings than an ingenious exerciso in the conceivablo. Those scacoast ,.esidents can demonstrate that they will in fact be porceptively harmed by the transfer of the ownership intorost in Suabrook from PSNil to NAEC. This is sufficient to demonstrate the re-tisito showing of standing necessary for the initiation of SAPL's intervention.

EQBAE, ard2IA, 412 U.S. nt 668.

"It is clear that an organization whose members are injured may represent those members in a proceeding ror judicial review."

NAACP v. Button, 371 U.S. 415, 428 (1963). Thus, by virtue of the l demonstrable injury of the area-residents, SAPL has standing to l

challen wo the amendment herein.

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CONCLUSION For the reasons stated hereinabove, SAPL appeals the decision of the commission rendored June 18, 1991, which denied its standing to intervono in the transfer of the ownership interest in

. Seabrook Station.

Respectfully submitted, Seacoast Anti-Pollution League By its Attorneys, BACKUS, MEYER & SOLOMON B y : , n, o b e A'. r t Backus, Esquire 116 Lowell Street P.O. Box 516 Manchestor, N!! 03105 (603) 668-7272 Dated: July 23, 1991 I hereby-certify that the copios of the within Brief of the Scacoast Anti-Pollution Leaguo have been forwarded to the parties

on the attached service list by first class mail, postage <

propaid.

?'f? .

&p

,,jRobertA . 'Backus , Esquiro l-

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Ad'ainscr'ative JudSe Administrative Judge Docketing and Service G.. Paul Bollverk, 111,'Chran, James St. Carpenter US NRC Atomic Safety and Licensing Alternate Technical Member Washington, DC 20555 Appeal Board Panel Ato.nic Safety and Licensing ,yiyL US NRC Board ' d"i Washington. DC -20$$5 US NRC Washington, DC 20555 91 Jit 25 A10:17 Robert R. Pierce Esq. Kenneth C. Rogers, Commissioner Atomic > Safety /& Licensing Atomic Safety and Licensing US NRC FA@ical "oardiPdnel Board Washington, DC 20555 US NRC US NRC Washin, d. DC 20555 Washington DC 20555 2

Administrative Judge Thomas M. Roberts, SAPL Thomss S. Moore Commissioner 5 Harket Street

-US NRC US NRC Portunouth, NH 03801 Washington, DC 20555 Washington, DC 20555 Administrative Judge Leslie Creer, l'sq.

Alan S. Rosenthal Ivan Selin, Chrm, Assistant Attorney General US NRCL US NRC One Ashburton Place Washington, DC 20555 Washington, DC 20555 19th PJoor Boston, F. 02108 Administrative' Judge Jamen R. Curtisi.,

lloward A. Wilber Commissioner '

US NRC , US HRC Washington, DC 20555 Washington, DC 20555 l  ;

Administrative Law Judge Dr. Kenneth A. McCollom Thomas G. Dignan,_Esquite

. James P. Gleason, Chrmn. Atomic Safety and Licensing Jeffrey P. Trout, Esquire Atomic Safety and Licensing Board Ropes 6 Gray Board US NRC One International Place US NRC ' Washington, DC 20555 Boston, MA 02110-2624 Washington -DC 20555 Administrative Judge Atomic Safety and Licensing Diano Curran, Esquire Kenneth A. & Collom Board Panel llarmon, Curran & Tousley Atomic Safety and Licensing US NRC 20001 "S" Street, N.W.

Board Washington, DC 20555 ' Suite 430 US NRC Washington, DC 20009 Washington DC' 20555

IWin J. Imio, rapiro

'Offico of Coneral Countc1 US IUC Washingtori, FC 20555 Pr.ul McEachern, Ihjuiro Shaines & M:Eachern P.O. Ibx 360 Maplewatx1 Avenue  :

Portcteuth, tal 03001 '

Sandra Gavut.in in 1, Ibx 1154 East Pennington, 101 03827 Mitzi A. Young

' Attorney

-Office of-the Ceneral Counsel US NTC Washington,IX2 20555 d.JosephFlynn,Eng.

Fcderal Drcrgercy thnagatent Agency ,

500 C Street, S.W.

Washington, DC 20472 G. Dana Bisbee. Esquire-0ffice of Attorney General Stato 11ause Concord,tal 03301 l

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