ML20082G838
| ML20082G838 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/06/1991 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#391-12099 LBP-91-28, OLA, NUDOCS 9108210100 | |
| Download: ML20082G838 (14) | |
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'91 AUG -7 R2 :31 August 6, 1991
.t UNITED STATES OF AMERICAL e n t, t, before the NUCLEAR REGULATORY COMMISSION In the Matter of PUBLIC SERVICE COMPANY Docket No. 50-443-OLA OF NEW HAMPSHIRE, e_t a,_1 (Seabrook Station, Units 1 and 2)
ON APPEAL FROM A DECISION OF THE i
ATOMIC SAFETY AND LICENSING BOARD LBP-91-29 (JUNE 18. 1991)
BRIEF OF LICENSEES Thomas G.
Dignan, Jr.
j Ropes & Gray One International Place Boston, MA 02110-2624 617-951-7511 Counsel for Licensees e
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91-288R.S3 9108210100 910006
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TABLE OF CONTENTS r
l TABLE OF AUTHORITIES ii STATEMENT OF THE CASE 1
i
'i ARGUMENT 6
l
'i I.
THE FAILURE OF SAPL TO FILE ITS BRIEF AT THE TIME IT FILED ITS NOTICE OF APPEAL IS FATAL AND THE APPEAL SHOULD BE DISMISSED ON THAT GROUND.ALONE 6
II.
THE APPEAL IS WITHOUT MERIT AS A MATTER OF i
SUBSTANCE...
7 A.
The Licensing Board-Correctly Held that SAPL Could not. Rely on Pending Investigations of Other NU Facilities as a Basis for Establishing Harm to its Members 7'
i i
B.
The Petition Did Not Identify an Aspect of j
the Proceeding as to Which SAPL Desired to t
Intervene which was Relevant 8
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CONCLUSION f
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8 TABLE OF AUTHORITIES Page(s)
)
Administrative Decisions:
Commonwealth Edison Co.
(Zion Station, Units 1 and 2),
ALAB-616, 12 NRC 419 (1980) 8 Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4),
i CLI-91-5, 33 NRC 238 (1991) 7 l
Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, (Unit 1),
-ALAB-547, 9 NRC 638 (1979) 7 Louisiana Power & light Company (Waterford Steam Electric Station, Unit 3),
CLI-86-1, 23 NRC 1 (1986) 8 i
r Mississippi Power and Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2),
i ALAB-140, 6 AEC 575 (1973).
7 i
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 NRC 167 (1976) 8 Public Service Company of New Hampshire l
(Seabrook Station, Units 1 and 2),
LBP-91-28, 33 NRC (June 18, 1991).
4, 5
L r
Wisconsin Electric Power Co.
(Point Beach Nuclear Plant, Units 1 and 2),
e ALAB-739, 18-NRC 335 (1983) 8 e
Regulations:
e l
10 C.F.R. 5 2.714a 5
10 C.F.R. 9 2.714a(a),
5, 6
t Miscellaneous:
l 56 Fed. Reg. 8373 (Feb. 28, 1991) 1, 2
56 Fed. Reg. 9384 (Mar.
6, 1991) 2 l
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UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION In the Matter of PUBLIC SERVICE COMPANY Docket No. 50-443-OLA OF NEW HAMPSHIRE, et al.
(Seabrook Station, Units 1 and 2)
ON APPEAL FROM A DECISION OF THE ATOMIC SAFETY AND LICENSING BOARD LBP-91-28 (JUNE 18, 1991)
BRIEF OF LICENSEES l
L STATEMENT OF THE CASE On February 28, 1991, this Commission caused to be published j
in the Federal Register a Notice that it was considering a request for an operating license amendment filed by the Licensees of the Seabrook Nuclear Power Station (Seabrook) located in Seabrook, New Hampshire.I The request involved was a request to permit the Seabrook operating license to be amended to permit North Atlantic Energy Corporation (NAEC), a wholly-owned subsidiary of Northeast Utilities (NU) to acquire and possess the 1
156 Fed. Reg. 8373 (Feb. 28, 1991).
e Seabrook ownership interest presently held by Public Service company of New Hampshire (PSNH).
This Notice gave until April 1, 1991 for the filing of petitions to intervene.2 On March 6, 1991, this Commission caused to be published in the Federal Register a notice that it was considering the issuance of another amendment which had been requested for the Seabrook operating license.3 This amendment would, if granted, allow North Atlantic Energy Service Company (NAESCO), another wholly-owned subsidiary of NU to become the operator of Seabrook.
As stated in this second notice:
the licensees contemplate that this transition will be initially accomplished by transferring to NAESCO the existing staff of [New Hampshire Yankee Division of PSCO, the present operator]."'
This latter notice gave until April 5, 1991 for the filing of petitions to intervene with respect to this request for a license amendment.5 On April 1, 1991, Seacoast Anti-Pollution League (SAPL), an experienced NRC intervenor represented by senior NRC-experienced counsel deliberately elected to file the petition to intervene at bar in the ownership transfer proceeding.and not in the operator change proceeding, although on that date, a filing in either i
i proceeding would have been authorized and timely.
In the 214. at 8374.
356 Fed. Reg. 9384 (Mar.
6, 1991).
'M.
3H.
. f
e Petition SAPL alleged that NU, the parent of NAEC, was under investigation for allegedly unfair conduct towards employees located at "the Millstone Nuclear Power Plant" of which "NU is the principal owner and operator. "6 The relief which SAPL sought was set forth.in 1 8 of the petition, as follows:
" Petitioner SAPL avers that, should a hear-ing determine that NU, or the proposed wholly-owned subsidiary, NAEC, have engaged in a course of conduct of suppressing enployees attempting to bring to the attention of_the NRC, or the public, safety concerns, this would constitute a material increase in the hazard of the operation of the Seabrook plant, and would indicate that NU should not be granted permission to become the licensed onerator of the Seabrook Nuclear Power Plant."'
On April 11, the Licensees filed an answer to the Petition which argued first, that there was a technical failing for lack of a named member who had authorized SAPL to represent him or her, and, second, that the issue SAPL sought to litigate, the change in operator of Seabrook, was not relevant to the application as to which SAPL had made its filing.a on April 22, 1991, the Staff filed an answer in which it argued that SAPL had failed to make the allegations necessary to establish standing and that SAPL had failed to identify a relevant aspect of the 6Petition at 2, 13.
7Petiti2D at 4, 58 (emphasis added).
8Licensees' Answer to the Petition for Leave to Intervene in the Transfer of Public Service Company of New Hampshire's Ownershio Interest in Seabrook Station to Northeast Utilities Filed by the Seacoast Anti-Pollution Leacue (April 11, 1991).
1 i
T proceeding as to which SAPL. wished to intervene.'
Inter alia, t
the-Staff'made the point that the gravamen of SAPL's petition, the pendency lof an investigation of alleged harassment by NU of l
employees at another nuclear facility, simply did not allege I
cognizable harm because mere pendency of an investigation does not demonstrate the existence of an actual violation or safety.
j significant' issue."
On April 24, 1991, SAPL filed a response to the Licensees.
i answer."
Therein SAPL characterized the Licensees' arguments as
?
formalistic in nature and attempted to cure the one formal (as j
. opposed to substantial) defect by naming two members of the
')
organization who allegedly live within 2.5 miles of seabrook.
On i
May-1, 1991, an Atomic Safety and Licensing Board was established in the ownership transfer proceeding.12 i
On June 18, 1991, the Licensing Board issued the decision at j
I bar."
In its decision, the Licensing Board assumed the validity
.[
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'RRC' Staff Response to SAPL Petition to' Intervene in j
-Procosed Amendment to Transfer Ownershin Interest (Apr. 22, f
.1991).
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"Id. at 9.
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' " Seacoast Anti-Pollution Leacues Response to Licensees' f
l
-Answer to'the Petition for Leave to Intervene in the Transfer'of l
LPublic Service Comoany of New Hamoshire's ownershin Interest in i
L Seabrook Station to Northeast Utilities (Apr. 24, 1991).
l 12Order of the Acting Chief Administrative Judge:
'" Establishment of Atomic Safety and Licensina Board (May 1, i
1991).
UPublic Service Company of New Hamoshire (Seabrook Station, Units'1 and.2), LBP-91-28, 33 NRC (June 18, 1991)
(hereinafter referred to'as LBP-91-28 and cited to the slip opinion).
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i of SAPL's representational status."
The Licensing Board then
-went on to adopt the Staff's argument that the mere pendency of an investigation at an NU facility did not demonstrate the required particularized harm.
Therefore, the Licensing Board denied the Petition to Intervene.
In so doing, the Licensing Board also noted that any appeal from this order was to be taken under 10 C.F.R. 5 2.714a.
On June 28, 1991, SAPL filed its Notice of Appeal.
It did I
not file any brief.
On July 15, 1991, the Staff filed a document entitled "NRC Staff Response to SAPL's Notice of Appeal."
Therein the Staff urged, inter alia, the dismissal of the appeal l
because of SA.'L's f ailure to file its brief with its notice as l
required by 10 C.F.R. 5 2.714a(a).
In addition, the Staff, as best it could be done absent any brief of SAPL, addressed the r
merits of the appeal and urged denial of it as lacking substantive merit.
On July 23, 1991, SAPL filed its brief on the merits (without.any motion for leave to make a late filing) and argued therein that the failure to brief was an oversight which should be excused.
i It is in the foregoing posture that this matter comes before 5
the Commission.
l l
I "Id. at 3 n.4.
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ARGUMENT t
l I.
THE FAILURE OF SAPL TO FILE ITS BRIEF AT THE TIME i
IT FILED ITS NOTICE OF APPEAL IS FATAL AND THE j
APPEAL SHOULD BE DISMISSED ON THAT GROUND ALONE.
l The regulation governing appeals from denials of petitions f
to intervene ic clear and succinct.
"The appeal shall-be asserted by the filing l
of a notice of appeal and accompanvino hrief.""
l
]
Although it has filed no motion for leave to file its brief late, l
SAPL urges that the Commission disregard its failure to file a l^
L i
brief along with its Notice of Appeal as an " oversight" and to L
accept the appeal on its merits."
This argument should be l
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rejected.
In much more_ sympathetic circumstances than that I
presented here, the Commission recently observed after noting i
that a lay-appellant had failed to file'a brief with the document t
which served as his notice of appeal:
[
f "It may well be that the appeal period j
provided-in--section 2.714a is not jurisdictional in the sense that an appeal
)
absolutely may not be entertained if it is
-i not filed within 10 days after service of the l
order.in question, but filings beyond the prescribed period are only justifiable if-there is a showing of good cause.for the failure to have filed on time.
Moreover, the l
fact that the Petitioner is a layman and thus
'l possibly unfamiliar with NRC's Rules of l
l Practice is not sufficient excuse for late or incomplete filings, particularly where the i
order that is being challenged expressly i
l l
"10 C.F.R.
S 2.714a(a) (emphasis added).
"SAPL Br. at 3.
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i advised the Petitioner of his appellate rights, of the time within which those rights had to be exercised, and of the manner in which an appeal is to be taken.""
i Indeed, this is another case where " considerations of fairness to other litigants, as well as the orderly administration of the adjudicatory process, preclude the granting to any appellant of a l
waiver of as fundamental a requirement of the Rules as that f
relating to the submission of a brief detailing the basis for his i
appeal.""
II.
THE APPEAL IS WITHOUT MERIT AS A MATTER OF SUBSTANCE.
A.
The Licensing Board Correctly Held that i
SAPL Could not Rely on Pending Investigations of Other NU Facilities as a Basis for Establishing Harm to its i
Members.
l As noted earlier, the Licensing Board did not deem it necessary to address the issue of whether the issues which SAPL was seeking to raise could be raised in the proceeding wherein l
r that Licensing Board had jurisdiction, i.e., the ownership i
transfer proceeding.
Rather, it held, even assuming such en issue could be raised in the proceeding, the basis which SAPL had articulated for its admission, pending investigations at NU's t
" Florida Power & Licht Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-91-5, 33 NRC 238, 240-41 (1991); citing Houston Lichtino and Power Co. (Allens Creek j
Nuclear Generating Station, (Unit 1), ALAB-547, 9 NRC 638, 639 i
(1979),
i i
"CLI-91-5, suora at 241 quoting with approval Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-14 0, 6 AEC 575 (1973).
I-P' LMillstone facility, was insufficient as a matter of law.
This ruling _was absolutely _ correct.
The existence of an investigation establishes'no fact'other than its own existence.
As the Commission has stated, albeit in the context of a motion to reopen, rather than the context of a petition to intervene:
"OI conducts investigations of licensees and licensees' contractors to determine whether there has been a violation of NRC requirements involving wrongdoing.
The bare pcndency of an investigation does not-indicate that there is a substantive problem, or even that there has been a violation.
Nor does it indicate that an allegation raises a significant safety issue.
The pendency of an OI-investigation indicates on1; that there is an allecation that is beina investicated.""
B.
The Petition Did Not Identify an Aspect of~the Proceeding as to Which SAPL Desired to Intervene Which was Relevant.
- It is basic to NRC adjudicatory-procedures that the scope of
-any adjudicatory proceeding, and thus the scope of the issues l
which can be addressed, the interests that can be affected, the rights that can be vindicated, and the relief that can be L
granted, is set by the Notice of Opportunity for Hearing published by the Commission.20 Here the relief which SAPL
[
t sought, as stated in its petition, was an order forbidding NU
" Louisiana Power & licht Company (Waterford Steam Electric i
._ Stat on, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986).
q 20 L
- See, e.g., Wisconsin Electric Power Co. (Point Beach
! Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1983);
Public Service Company of Indiana (Marble Hill Nucl. ear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976);
Commonwealth Edison Co. (.iion Station, Units 1 and 2), ALAB-616, j-12 NRC 419, 426 (1980).
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from becoming-the operator of the plant.
The issue of NU's j
fitness to operate Seabrook through a wholly-owned subsidiary was not within the scope of the proceeding noticed on the transfer of j
s ownership application.
It was, and is, essentially the central l
t focus of the proceeding which-was noticed with respect to the l
I operating transfer amendment on March 6, 1991, a proceeding in i
which SAPL, and its experienced litigator, deliberately avoided j
i filing, even though such a filing would have been timely.
Had SAPL wished to make a challenge to NU's fitness as an operator, 3
i it could, and should, have intervened there.
It did not do so.
l i
CONCLUSION'
-i The appeal should be dismissed for failure to file the brief i
as required by the Rules of Practice; if the Commission decides j
to address the appeal on the merits despite SAPL's procedural i
defaults, the decision of the Licensing Board should be affirmed.
l i
Respectfully submitted, j
l M
J W-x, J/k r -
I Thomhs C. Dignan, Jr.
Ropes & Gray-1 One International Place i
Boston, MA 02110-2624 i
(617) 951-7000
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i Counsel for Licensees
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CERTIFICATE OF SERVICE i
I, Thomas G.
Dignan, Jr.,
one of the attorneys for: the -
Licensees herein, hereby certify that on August 6, 1991',OI made
[
L service of the within document by depositing copies thereof'with Federal Express, prepaid, for delivery to (or where indicated, by depositing in the United States mail, first class postage paid, addressed to) the individuals listed below:
Ivan Selin, Chairman Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike-7 Rockville, MD 20852 Rockville, MD 20852 Forrest J.
Remick, Commissioner James R.
Curtiss, Commissioner U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 r
Marjorie Nordlinger, Esquire William C.
Parler, Esquire Office of the General Counsel General Counsel l
One White Flint North Office of the General Counsel
?
11555 Rockville Pike One White Flint North i
Rockville, MD 20852 11555 Rockville Pike Rockville, MD 20852 Administrative Judge Kenneth A.
James P. Gleason, Chairman McCollom 513 Gilmoure Drive 1107 West Knapp Street Silver Spring, MD 20901 i
Stillwater, OK 74075 Administrative Judge Richard F.
Ann P.
Hodgdon, Esquire Cole, Atomic Safety and Office of the General Counsel Licensing Board U.S.
Nuclear Regulatory
[
U.S.
Nuclear Regulatory Commission Commission One White Flint North, 15th Fl.
East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814 5
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L TCONUCOS.NH L
Robert A.
Backus, Esquire Backus, Meyer & Solomon 116 Lowell Street P.O.
Box 516 Manchester, NH 03105
/) W nP Thomas G. Df/ffian, Jr.,
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