ML20082N554
| ML20082N554 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/01/1983 |
| From: | Doherty J DOHERTY, J.F. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20082N547 | List: |
| References | |
| NUDOCS 8312070223 | |
| Download: ML20082N554 (20) | |
Text
-
l
. I
~
DOCKETED
'J5h:C UNITED STATES OF AMERICA
- NUCLEAR REGULATORY COMiISSION
+83 DEC -5 A!0:49 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
/./,. O .0# *5 3.~*
' 'q ' _'=.
. w .inG,. .
Administrative Judges:
Alan S. Rosenthal, Chairman Gary J. Edles Howard A. Wilber
)
In the Matter of: )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW HAMPSHIRE, ET AL. ) 50 444 OL
. )
(Seabrook Station, Units 1 and 2) )
)
JOHN F. DOHERTY'S BRIEF IN SUPPORT OF HIS APPEAL OF THE NOVEMBER 15, 1983, LICENSING BOARD DENIAL OF HIS PETITION FOR LEAVE TO INTERVENE Introduction John F. Doherty, of 318 Summit Ave. #3, Brighton, Mass. 02135, now files pro se this Appeal of the Atomic Safety and Licensing Board Order (hereafter: Order) of November 15, 1983, in this operating licenses pro-ceeding.
Petitioner's first entry in this proceeding was on August 26, 1983, when Petitioner made a limited appearance statement pursuant to 10 CFR 2.715, l at Dover, New Hampshire, opposing the licensing of the Seabrook Station, l
l (Tr. 1782-8) mentioning two safety issues of concern to him with the two reactors. On September 6, 1983, Petitioner filed a Petition for Leave to Int-1 .
l ervene+ assertina standing, and a single contention which concerned only
! the Seabrook, Unit 2 reactor. On September 19, 1983, Applicant opposed the petition for lack of standing and lateness in filing. The Staff replied on September 26, 1983, opposing the petition for lateness.
l Petitioner filed an amended petition for leave to Intervene on October 4,1983, answering Staff and Applicant positions with regard to standing and lateness. Staff moved to reply to Petitioner's amended Petition on October 24, 1983, in a two page filing pointing out to the Board a Commission regula-tion it deemed significant. Petitioner, On October 27, 1983, urged the Board that Staff's filing was procedurally defective. 1/ Cf.n., next Page) 8312070223 831201 PDR ADOCK 05000443
_ _ _ . .__ _. -- G.__. __ _ _ _ P DR _ _ _ , _ . _ _ _ _ __
< 'l
- On October 19, 1981, a Federal Register notice announcing Applicant was seeking an operating license for Seabrook Station. Units 1 and 2, was published h with the usual' provision for members of the public to file for intervention to protect their interests.
On June 23, 1983, Petitioner be-ame a resident at his above address after five years and nine months living in Houston, Texas. Commission regulations require that unless discretionary intervention is granted, a member of the pub-t
- 5 4 lic must have standing
- and one litigable issue to participate in a licensing proceeding. 'Therefore,' this Petitioner filed his September 6,1983, petition under the provision for late intervention' in 10 CFR 2.714(a)(1)(i)-(v). Filing
~
under these requirements was the only path to assertion of Petitioner's rights given the 1981 Notice of Intervention, which Petitioner ,could not utilize because Commission licensing Boards have never granted.standin.gto persons living as great a ' distance ae ?etitioner did at that time from the Seabrook Station.
This Petitioner had desired to file several safety contentions against the Sea.
brook Unit 2, reactor. However, he found himself blocked from this by the No-tice of Intervention procedure as may be easily inferred from the above. Exhibit "A" of the original petition (Exhibit "B" in this appeal) indicates that on August 21, 1983, Seabrook Unit 2 was 22.5% constructed, so it may be inferred
, that on October 19, 1981, it was less complete. As developed below, Petitioner believen the dismissal of his petition on the basis of lateness in the case of
'SeAbrook Unit 2 has unfairly deprived him of intervention rights in the operation i,
of a Conmission licensed reactor available to him under l'O CFR 2.714. This m '
r dismissal requires reversal by this Board with instructions that at such
' ' time Seabrook Station. Unit 1 is substantially completed, a Notice of Interven-i' tion procedure be published.
D
, l0
1/
(From previous page) The Board in its orday( (pg.2) mentionean October 20, 1983, letter Petitioner sent the Board on the chance the Board had issued an order on the petition which had not been delivered (Exhibit A),The item was sent Staff and l
- 3 Applicant and some of the thirty parties in the proceeding. Petitioner was not j entirely certain his amended petition had effect and thus, twenty-four days :
af ter Staff's initial reply, a brief inquiry seemed appropriate. However, the l Board considered all pleadings filed by Petitioner, Applicant and the NRC Staff ,
in reaching its decision. (Order, pg. 8) 1 l
~
4 The practice of combining licenses (10 CFR 50.52). should not be used to foreclose intervention rights of this Petitioner in this proceeding, f
In this proceeding, the Commission, through its Licensing Board, is permitting adjudication of whether the Applicant's operation of two nuclear reactors at the Seabrook site is inimical to the public health and safety. These reactors have been under construction since 1976.
Unit 1 is approximately 80% constructed, Unit 2 is less than 25% con-structed. S If Ugig_J were not at its current construction level, application for an operating license for Unit R would not have been remotely apnronriate on October 19, 1981, the dare on which the Notice of Intervention Procedure appeared in the Federal Rerister. Thus, as interpreted by the Licensing Board, the rules permitted Unit One's level of construction c6mpletion to set a deadline on the right of in-tervention against Unit Tyg, a benefit to Applicant and a detriment to Petitioner-Appelant. For, the notice has had the effect of requiring Petitioner to justify through 10 CFR 2.714(a)(1)(i)-(v) " factors" his failure to file when the October 19, 1981 notice was published. As pre-viously stated Petitioner thought it was a certainty he had no standing at any time prior to his resumed residency in Brighton, Massachusetts.
The decision to return to New England was made approximately April 10, 1983. 2 10 CFR 50.52 permits combination of license proceedings. Petitioner does not claim this rule inapplicable to any multi-reactor plant or facil-ity, but that it is not reasonably applicable in the instant licensing.
Where, as here, the disparity in construction status reacnes a great quan-tity and the forseeable time requirement to bring a unit to substantially completed status is of long duration, it is denial of due process to dis-allow a petition (which effects only the less completed unit) on the basis of 10 CFR 2.714(a)(1), (Order, pg. 8).
4 S! Exhibit "B" (which is Exhibit "A" of the original petition for leave to intervene).
-3/
.To date, no Party has urged that Petitioner s12pt on his intervention rights after his arrival in Boston, June 2, 1983. At sometime near the end of July, Petitioner filed his request for a 10 CFR 2.715. " limited appearance". In the amended petition for leave to intervene, (page 3), Petitioner has accounted for this tLae, however.
.- -- . - _ ~ . - _ . . . - . .- .-
- 4 A hypothetical situation might further illuminate what Petitioner believes is the arbitrary and capricious destruction of his intervention rights by the appealed Order. Suppose an Applicant had built as much as is completed of Sea-brook Unit 1, at the site but constructed another unit equidistant from Peti-tioner's home using the same cooling inlet water, etc. but a mile further inland from Seabrook called "Waterbrook". If "Seabrook*were 78% complete and " Water-3 brook" 25% complete,would denial of intervention in "Waterbrook" as in this Peti-
, tioner's denial in this licensing,be reasonable under Commission practice if there were a " combined licensing" proceeding? The answer must be "no", but the differ- ,
ence is only a small distance, which cannot effect this Petitioner's interest any more than S'eabrook Two does over and above Seabrook One. The difference be-tween the two Seabrook reactors and the hypothetical reactors is that they are conceived as a unitary plant. The use of one to aid the other to obtain a license is not based on a lega1' doctrine, and should not be allowed here.
The combining of Seabrook One and Two for licensing purposes made sense for obtaining construction permits and for some aspects of operating considering .the im-pact of both plants makes sense as well. For instance, findings on evacuation or other aspects of the public response to accidents, would apply to any single reactor at the site, since a double accident releasing radiation from both reac-4 tors is not credible.
j The combining of license proceedings also makes sense from a regulatory view- f point if there is certainty the adjudicatory hearing is licensing what the actual licensed items shall be. However, where one licensed item clearly lags, there is the growing possibility of regulatory changes (such as those bought on by the Three Mile Island accident of March,1979, by way of example of an unexpecated event that bought change) interceding between the license granting and the completion of the remaining 78% construction which well could cause a different Seabrook Two to emerge than is the subject of the present licensing. 4/ -
- 4/
On September 8,1983, the Managing partner for Seabrook Station, Public Service Company of New Hampshire, agreed to reduce work to "the lowest feasible level" ,
on Seabrook Station. Unit 2, until some as yet unknown date, thus increasing the length of time from the deadline for petitions for leave to intervene and the date for fuel insertion, when the plant would be for practical purposes capable of " operating". (Exhibit "C").
4
._ .- . -,_.__ ,,.-._m.- _.m_.e.-_..,,..wm,..__- ,.we._.,,_-._,y, -
,,,-,%.. . --,,-,,..-,-,_.-,...-,--._..--,w---
--.n- - - a,, - - - ,A_ w- -++--& -4 L a--w+-__.-uA 5.
It follows, of course, that if the construction of two plants ,
were close in status, a 10 CFR 50.52 " combined licensing" proceeding would make sense and not violate Intervenor rights as asserted in the instant case. But, here these possible differencetthat would emerge due to the long time required for further construction are not the conern of this Petitioner alone. The Advisory Connittee on Reactor Safeguards has stated with regard to Seabrook Station. Unit 2, "Should therebeasignificantdelayinthis{plannedfu'elload)schedulewe would expect to examine the need for additional review of Unit-2". 5!
However,'even'if it can be shown no changes will occur in the plant P
design, this Petitioner believes that in the case of his one filed issue in this multi-license proceeding and as regards all health and safety issues, the fact that the deadline for Intervention petitions passed prior to Petitioner attaining standing anifiling a petition for leave to intervene, cannot be used to prevent intervention against a substantially inc?mpletely constructed reactor even if that reactor is docketed with..is on:the same site as, and is planned to be identical to,another which is substantially completed and whose deadline for petitions for leave to intervene was announced at the same time, without taking away intervention rights which he is entitled to by virtue of his standing and contention as stated in his petition for leave to intervene and its amendment. Fi l, the addition of the second reactor adds 3
to the hazards, regardless of how small, to Petitioner.'s interests, and since he would have standing to intervene when that reactor became substantially constructed but for Seabrook Unit 1,' he should be afforded the opportunity to be heard.
l l
i b NUREG-0896, " Safety Evaluation Report for Seabrook Station, Units 1 and 2,"
l Supp. No. 2, p. I-2 (June, 1983).
~6- .
,Althouch tho use e' a conbinei licensine accears to orohibit this Petitioner's filine, Petitioner nualifies to Intervene in this oroceeding under 10 CFR 2.714, and CLI 83-23.
The Board in its Order, (c. 3) states it "lh]eed only c:nsider whether the late-filed netition can be admitted after balancing all five of the intervention facto-s set forth in 10 CFR 2.744(a)(o)", and careful consideration of the contents of the contenti~on and the circumstances of its offering. Public Service Connanv of New Homnshire, et al., __ NRC __, CLI 33-23, Sootember 19, 1983. The Com-mission Issuance was two weeks after this Petitioner's orig-inal filing, and hence may not be applicable. However, Pe-titioner urges use of CLI 83-23 by the Anpeal Board. Below, Petitioner uses the five factors of 10 CFR 2.744(a)(1) seri-atim, to show th,at their balancing and careful considera- ,
tion of the contents of tbe contention and offerinP circum-sta7ces favors admissi.n of his netition for this troceeding.
(i) Good cause, if anv, for failure to file on time.
It is clear it would hcve been frui;less for Petitioner to have filed a netition for leave to intervene in this nro-ceeding nrior to June of '983, when Petitioner resided in Texas. The Staff es.nentially states this' inter alia in its first Res,wse (n. 4, f.n.1). The Board, in its Order (p. 4),
has exnanded the sco,3 of Carolina Power 1 Lirkt Comoan?,
(Shearon Harris Nuclear Power riants, Units 4 -4, ALAB co6, 9 NRC 122, 424,(1979), to apply to Petitioner. In Carolina, petitioner's filine cane after an initial decision by the licensing board on a C nstruction Permit aonlication, and cetitioner had then attensted to gain Jarty status on a sin-
-le issue remanded by the Commissi m which the cetitioner had not made nart of his ceneral petition for leave to inter-vene. Here, unlike Carolina, the Licensing Board is holding a ore-hearing conference on one asnect of the licensing (off-site emergency olanning, (Memorandum and Order, November 10, 1983) and has very recently comoleted hearinr evidence on safety issues. This proceeding has not cro ressed as far as had the one in Carolina, and thus an onnosite result in this oroceeding would not burden Parties as much as a like result would have in Carolina. ,Then too, since Carolina I
,, (suora.) was a construction cernit nroceedinr, start of activity awaited the oermit. Here, admission of Petition-er's filing can on1.y effect the 3eabrook Unit 2, oublicly acknowledged less than 254 constructed, and several years from comoletion. Admission of the netition cannot oossi-bly render the harm caused a dela7 as would have been the case in Car, lina (aunra.) ha?'that case been decided dif-ferently. This Petitioner helieves it is an extre9e view that admission of his cetition could have any conceivable dela7 on the oro ress toward comoletion of either subject reactor units.
In Carolina (sur a.) the Aopeal Board ex'ressed its belief that if newlv ac-uired staadine we're sufficient of itself to .iustifi n7rnittin- belated intervention, the nec-cessary conse-uences would be an interminable hearine.(Id.
at 124) This wouli rv uire a chain of newiv arrived ner-sons, fi14.nr in a well smaced, virtua11.7 coordinated effort.
It has never been shown tha such has been atte,ated in a Cor.nission 7roceedin . It is also difficult to see how the rirhts of Petitioner can be denied because of the sneculation ,f conduct hv others at a later date. Some-thinr more is re-uired to a'oly this asnect of Carolina (sunra.)
to this Petitioner.
Staff cited Houston Lightine L Power Comnanv, (Allens Creek Nuclear Generatin- Station, Unit 1), ALAB-SS2, 11 URO 239, 241, (1980) to the Board. In that case, a late 7etition was denied on apoeal because petitioner's Drocosed standing was based on economic interests and status as a
! ratepayer which is not sufficient. The Appeal Board men-tioned the Carolina decision (suora.) as one which the 11-'
censing board had used with their approval. However, it is clear the final result in Houston (suora.) rested in creat part on affirming a netition inadequate because "[p]e-titioner had not narticularized his interests". (Id. at R41)
The Board in its Order (p. h) ao7hrently be'.ieved this Petitioner ar uei lac: of a mreness of the si nif-icance of the Federal Renister notice (Notice of Inter-vention) in this 7roceedinc in his A7 ended Fetition and was esto'oed by his own actions.(Order, p. 5) The Board states, " Petitioner has betrayed his understanding of such letal requirenent as notice by the character of his cleading and admitted orior oarticioation in Allens Creek.*
(f.n. omitted) Petitioner instead was savin- that to ex-
,ect a ,erson to act on all Federel Re-ister notices auply- ,
ine to a licensin- 4,300 miles from his residenc9 1s ex-
,ectinr bevond normal human action. Petitioner does take notice of Federal Recicter notices that effect his ' interests in order to ass,-t his rirhts. In 4o31, this Cetitioner had no such interests in Geabrook Station, and hence could not and 'id not attemnt to as6ert any rights. Petitioner sought fV to conceal nothin-/the ,assa e unted in the Order, (p.5 ),
there bein not'1it- to conceal.
The Carolina nroceeding (sunra.) offers no ';uidance for abuse from over a',llestion of its doctrine. Here, Petition-er's stan4ing is destrored 57 olacin.:- the Notice of Inter-vention unreasonably ah 'ad of the re-uired' substantial com-
,letion of Seabrook 5tation Unit 9 for an operating license.
Since seabrock Station Unit 2 is less th&n 25% comolete Fe-titioner has alraad~ demonstrated it is, in effect, improcer-ly before the Licensing Board (infra.). If the Notice of Intervention were nublished in the f94eral Feci st v and a netitioner were two days late in filing, having moved into the area, and yet the evidentiarv hearin- we"e not held for four years thereafter, all.nersons movia within the zone of effected interests to the olant in the foer years would have
~
no richts to Intervene under aoolication of the Carolina (suora) rule.
In the case of this Fetitioner, the res of his stated contention is the licensin of the 3eabrook Station, Unit 2.
By the placinq of the eneratine license for Unit 9 with that for Unit 1, Petitioner has been denrived Of his ri-ht to inte vention. In 1?S1, the year.of the Notice of Inter-vention it was nublished in at least one national re#erence oublication,, that Unit ? would not be com,leced until "986, meanin- that the Carolina rule is now a.'serted by this Licen-sing Board as a basis for denyin!. intervention arainst Unit 2, for an z nerq3n 7'via- into its efected area in the last five years. f.is is an overextension of the Carolina rule.
The Com,issica arar; ice of multinle licensinc has been strained bevoni'aavthinr contea-lated in Carolina in the in-stant case. Convenience to carties cannot be used to den?
intervention ad infinitum. If so, not only are the inter-vention richts of ;7:itioner,as here, strioned, but it be-comes i.creasinrly attractive for construction nerait holders to file for operatin" licenses aarly so that they nav rid thems21ves of the ,roblen of cublic narticination in Commi-sion hearings.
Thus, Petitionerwoul' hrte the Ae eal Soard conclude there was rood cause for failure to rile on time. He would urge the A,7eal B,ard to n,te that the setting of "on time" (10 CFR 9.?"4(a)(1)(i))for this croceeding which is for two licenses, cannot be made on the basis of a sin ~1e one of them civen the facts here. This would, of course, ur?e that the "on time" time has not yet arrived in order to make a deter-mination that there has not been good cause shown for not filing on time, and hence the balancing of factors on this cart of the regulation is in Petitioner's favor.
(ii) The availability of other means whereby the Petitioner's will be orotected.
The Board acreed with this Petitioner that a limited L
aopearance statement could not protect.his interests. (Order
- p. 6) The Board also agreed with Applicant and Staff that no other carty had articulated the concern. 5! However, the Order (p. 7) then apoears to say this shou 11. not count much in Petitioner's favor, since " [d ith the active intervenors in the croceedings, the (fact that) the issue has not been broucht forward...can only be considered as a novelty at this
.coint in time."(Order, p. 7) This Pe'titioner can only make out that the Licensing Board was sayin that with so many in-l tervenors, this isnue must have been examined by at least one and found trivial. 2!
The inclusion in the Crder (p. 7) of delay and broaden-i ing the issues factors in this one of the five factors of 10 CFR 2.71a(a)(1) by the Licensing Board failed to recognize these factors were included in 10 CFR 2.714(a)(1)(v). While miving Petitioner the greater weight on this issue, it would have been error if the Board arrived at the conclusion, "This I factor weights less than other factors to be considered",
$/Th e Contention as worded in the Amended Petition of October a, l 1983, is:
Public Service Comoany of New Hsqnshire's A971ication for an Ooeratine License for Seabrook 3tation, Unit 2, is ore-l mature because the unit is but 229 comolete and many more than four years are.likely to remain before tho unit is substantielly comoleted in conformance with :iRC rules and reculations. Acolication for an coerating license for this unit now, violates 10 CFR 50.57(a)(1) and granting the oper-l ating license with the unit but 22% completed or not sub-l stantially comoleted threatens those health, safety and i economic interests of Petitioner set forth above. With 78%
i of the olant on paper, the Board cannot adecuately control the outcome of the plant's systems, in particular, the high pressure core injection, high pressure core spray, low oressure core in.jection, low pressure core soray, pressur-l izer, standby licuid control system, reactor coolant leak l detection system, ESF secuencer and make-up system (CVCS),
! sufficiently to protect Petitioner's interests. The Board l should deny the operating license for Unit 2 until the
- l Applicant has substantially completed it.
2/ However, one Party, Seacoast Anti-Pollution League, filed a mo-tion Seotember 26, 1983, to have the Seabrook Station Unit 2 licensing dismissed.
l
_ 11 -
because it inclu'ed the extent the netition would broaden the issues or delay the nroceeding. It anpears the Licen-sinF Board did this. (Order, c. 7) Doing this counts these factors twice against Jetitioner since thev would be analied in the weiching of 10 CFR 2.714(a)(1)(ii) and 10 CFR 2.714 (a)(1)(v), and contrary to CLI S3-23 (suora).
(iii) The extent to which the Fetitioner's Particination may may reasanab'.7 be ex7ected to assist in develonine a a sound record.
The Licensinr Board stated 2etitioner's cleadincs did not demonstrate anv way his nartici,ation wouli assist it in comnilint a sound record. (Order, 7. 7) In his filings, Petitioner had aisumed the Licensin- 3 card would realize Petitioner would cross examine titnasses willinF to testify a 925 com71stei unit was substantially comoleted in comoli-ance with :'!20 regulations, and that the various systems listed in the Contention would not differ from the more fully con-structed unit. This Jetitioner acknowlednes this was an over-assuantion on his cart. Ilowever, this level of narticipation is the most frecuently seen since ner se intervanors infre-cuentiv nresent their own witnesses. The Board might have inferred that crosn examination would be Petitioner's form of narticination from the fact the Staff challenced Petitioner with recard to this, (Staff's Resnonse, 3e7t. 25, 1933, o.6),
yet Petitioner did not reoly by savinr he would nresent a wit-ness. (Amended 'etition, D. E - 5) Petitioner,however, is not sayine the Board had oucht to have seen this.
This Petitioner has cro."? examined 2ritnesses in an HRC consturcti n nerait hearinr, Allons Creek in "931 and '932.
Petitioner believes this back roun vives him, "the ability to contribute sound evidence." Houston Lirhtine & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1, ALAB-671, 15 NRC 508, 513 (1982). This included cross examination of aoproximately 75 witnesses.
In CLI B3-23 (suora) decided two weeks after this Petition-er's Petition for Leava to Intervene, the Commission stated that in considering the five f actors of 10 CFR 2.71a(a)('),
" Careful consideration of the contents of the contention was sirnificant in balancing the five factors. Hence, 10 CFR
?.7"4(a)($1(iii) includes in its weighing not only the Peti-tioner's oersonal ability and witnesses willing to testify in Petitioner's contention's behalf, but also the Contention itself. The Contention co es with the Petitioner, and while a Petitioner may a7ocar of low ability, that nerson may, by a sirnificant conte 2 tion to a creat extent be enoected to assist the Licens'nr Board in develo71ng a sound record.
In one filing, this Petitio er has urred that if a 3eabrook Station, Unit 2 o,eratine license is eranted, the record will be innroved by a consideration by the Licen-sine 302-d of what ef"ect on nublic health and safety, Franting the license will have on a reactor but 20% complete, whose construction time is uncertain and many safety systems are sub. ject to change due to chanzing regulations. (Petition for Leave to Intervene, p. 7) The Contention gives a greater omoortunity for a careful deternination of whether the Applicant is in comoliance with 10 CFR 50.57(1) by the Licensing 30ard and the Commission. Petitioner urres that the content of the Contention should be considered in determining the balancing of 10 CFR 2.714(a)(1)(iii) and that this would have made this factor in favor of Petitioner had it been done, and that the Licensing Board erredin not doing so sufficiently.
(iv) The extent to which the Petitionev's interest vill be renresented bv existine ,arties.
On thin factor, the 3 car'. accarentl - hali acainst Fe-titioner the fact that other Intervanors (unspecified in Aomlicant's filing and the Order) have health and safety in-terests re7 resented in this oroceedine. This speaks well for the croceedins, but since Petitioner's concerns are not those of any other narty, and hence won't be dealt with in cross-
_ 13 -
examination, the Licensinc Soard erred if it discounted the weight this Petitioner 4.s entitled to on this issue.
According to " N. R. C. Staff's Pro 70 sed Opinion, Findings of Fact and Conclusions of Law in the Form of a 1artial Initial Decision", of November 14, 1933, issues of Envi-ranaental ~ ualification of 3 uiotment. 3,ergency Classi-fication, and Action Levels and' Evacuation Time estimates have been heard thus far. There are offsite emergency 71anning con.tentions yet to be covered. (Memorandum & Cr-der, November, 'O, 1983)
The Boara Order (p. 8) states, "While some weicht may be given to Petitioner here, it does not tio the bal-ance shen viewed a~ainst the tir.e in the oraceeding at r
6ich the 7etitioner seeks to introduce it." Svidently the 3aard e3 ntei thi.3 factor against retitioner, believ-inr the " [c]ircumstances under which the contention is ofrared"(CLI 33-23, Sent. 17, 1383, suura) could include the lateness in which it was filed and it could be a factor in the 10 CFR 0.?14(a)(1)(iii) balancing. In considering lateness, the Snard is obvioust'; nost concerned with delay-ine the ,roceedings. Jut, 10 CFR 3.71a(a)(1)(v) is soecif-icall'r con:erned with, "Th; extent to which the Pecitioner's tarticioation will broaden the issues or ielav the proceedings.
(em,hasis added) The Board is in error if it niaces any weirht of delay in the balance acainst Fetitione" on this factor as it annears to have done. (Orier, n. 3) For, this factor is aimed at eliminating renetition. This Petitioner urges the orocer niace for weighinr the delay factor is 10 CFR 2.714(a)(1)(v) and not here.
(v) The extent to which the Petitioner's carticination will broaden the issues or delav the nroceedings.
The Board Order (p. 8) indicates Petitioner's participa-tion would "truly" broaden the issues and delay the croceedings.
in -
The Board has cointed out this Petitioner has not nrovided in'lormation in his filings on what he needs to do to pre-sent his contentions. As pointed out earlier, the Peti-tioner envisioned only cross examination of witnesses put forth 57 Staff and Aeolicant. A systematic cross exami-nation b7 this Party would crobably require three days at the most. Petitioner cannot tell what other parties nay wish to do.
The Board showed concern that this Contention has been introduced, 'p} early two years af ter the nroceeding began. . . ",
(Order. o. 8), as if there ve e sone time limit from the date of the .;otice of Intervention until the end of an operatine license hearine. ;awhere is it indicated the introduction and hearine of this issue will i,,act on the date Seabrook Station. Unit 1 will start overation. Althou<-h Petitioner believes no late #iled petition can speed u7 the croceedincs, he w,uld urce that the delav *:ill not be extensive sud con-sideration of the issue ic very relevant to one of the Board's dete niantions as tell as sa'e operacion for one of the two reantors.
As with delay, the in':roductian of this Contention nec-cessarily broadens the n"oceeding. But, sin'ce the Board must make a determination under 10 CFR 53.57(1) of substantial con-struction,the broadenina asnect is not as Treat as anpears without that consideration. But, under CLI 83-23, weighing the importance of the Contention is important to oroper balanciny of the broadening factor. And broader.ing is not a verr shar, concent. Surely the hearin~ should not drift into irrelevant matters, and Fetitioner asrerts his single Conten-tion is relevant to the 07erating license for one of the two olants in the croceeding. Instead, broadening is probably re-lated to delay. That is a broadened hearing could be vulner-able to delay from cross examination ranging into areas not readily visible as ouen to cross examination on the contentions admission.
_1c_
However, Petitioner's contention is drawn to the safety systems of one plant, and in narticular if the 71 ant is substantially completed. The safety systems 7 art of the contention cannot go into their workings, reliability or other ascects. Instead the in-uiry cust go to how well these systems can be. licensed -iven the long time before it is excected thev will be in niace in the newiv constructed Unit R.
Thus Pititioner believes the co/. tent of the Con-tention overrideJany delay or broadening it will bring into these hearings, which though comolex and partisan are not of a long record and in no danger of slowing the sensibly exuected operatinF licensing date of either GeaSrook reactor. Thus, although there is reason to doubt Petitioner should win this factor of al CFR ?.714(a) on balancing, if seen in the total con-
~
text of coatention centent and delay effecting the star-tin- date or dates of the reactors, Petitioner should ain the greater wei7ht on t'ais factor.
Conclusions
- Petitioner has shown that his Petition was unjustly denied by the Board Order because of overzealous auplica-tion of the Conaission oractice of conbined licensings and unwarranted exoansion of Carolina Power f4 Li-ht Com-nany (Shearon Harris Huclear Power Plants, Units 1 a, ALAB-526, 9 NRC 122 (1979). This exnanded ap71ication has resulted in nrohibitin.3 his Petition although the actual operation of the Seabrook Station, Unit ?, is at least several years hence. Left staniing,the Licen-sing Board Order has the effect of closine intervention against Seabrook Station, Unit 2, for persons moving into the zone of effects of the unit (including Petitioner) k -
from 1481 onward.
One remedy Petitioner seeks is that his Petition be admitted with its sinels conte.ition. But, it follows from the arguements presented in the first section of this Brief, that more is required to do . justice to the oublic interests, including those of Petitioner. Thus, this Petitioner has ar:ued the full licensine of Seabrook cta-tion, Unit 2, is im,rocerly before this 3 card, and only a Partial Initial decision should be issued if a favorable findinF is made at this time. The cartial initial decision for Seabrook Station, Unit 2, would cover issues tried before the Board in the hearings. It annears certain that for Unit 2, a Kotice of Intervention Proceiures would have to be ,ubl.ished in the Federal Recister at such time the unit was close tb or actually substantially constructed.
Intervenors could raise issues based on new evidence not available to the current Licensing Board on issues ore-viously tried and other issues could be raised without meetinr this requirement. Houston Lichtinc f4 Power Co.
(Allens Creek liuclear Generating Station, Unit 1, ALAB-535, 9 NRC , A,ril a, 1979)
With regard to the aonlication of 1' OFR 2.71a(a)(1) by the Licensine Joard to this ietitioncr's filings, each factor is considered in this Brief. However, Petitioner bel.ieves the ore-mature ' start of the o,erating license proceeding for Seabrook Station, Unit 2, has been the cause of the Board.'s finding of lack of cood cause for failure to file on time as required in 43 CFR 2.71a(a)(4)(i),
and has shown here that this factor should not have been found against his Petition because that licensing was allowed to begin in unfairness to him.
In determinr the weight ;iven each factor of 10 CFR 2.714(a)(1)(1-v) the Licensing Board improcerly considered perceived delay with regard to 10 CFR 2.714(a)(1)(ii) and 10 CFR 2 714(a)(1)(iv).
Respectfully submitted, ohn F. Doherty
._ ~ _ _ _ _ __ - . .
' ~
Octob'er 20,- 1983 HlBIT A.
~'
HolbnHoyt,Esq. - -Dr. Jerry Har'$our
~' Administrative Judge ' Administrative Judge Atomic Safety & Licensing Atomic Safety & Licensing -
Board Board U. S. Nuclear Regulatory Comm. U. S. Nuclear Regulatory Comm.
Washington D. C. 20555 Washincton D. C. 205c5 Dr. Emmeth A. Luebke Administrative Judge Atomic Safety & Licensing Board U. S. Nuclear Regulatory Comm.
Washington D. C. 20555 Ret Seabrook Station, Do.cket No. 50-4a3 50-444 To the Members of the Honorable Board:
This letter.is to incuire if the Board has issued an order with regard to this Petitioner's " Petition for Leave to Intervene" of Seotember 6.1933, and " Request for Leave to Amend His Petition for Leave to Intervene", together with an" Amended Petition for Leave to Intervene" of October a, 1983 Petitioner resoectfully renuests ,the Board ta'<e .stens to send him the Order (s) if indeed they have been cibculated, and the Board can see the Order (s) should have arrived at Petitioner's address by this time.
Thank you.
Sincerely, John F. Doherty Petitioner D
. > 9
_ E M IstT B .
! ~
Skepticism voicedrover Sea b ok 2 W~ l
\
og _ y h :
ESEABROOK p l d.
Continued from Page 65 f i j /
) P!*-
does not directly regulate electdc -
companies, but it represents the "t s .
thinking of Gov. Joseph Brennan ]a ..:. ,.
and likely will be reflected in delib- *
-7 erations by regulators. ,
., M" . -
Accordin to the latest tally, at .
are s ng to e a the ro sell off part of their holdings. In
- t. $
some cases, the ut!!!!!es have taken y.g ' A those actions on their own. whlie gj e In others they are under the order g , 4_.
of utility commissioners. In neither + :#'M *. .-dKge--M case is there e market for Seabrook shares. .-
( e
~=. ili" Nh- E. . 3.
Regulation the bans of Seabrcok --
"These are not positive develop-ments. They don't make things easier for us. but it doesn't change , l our belief customers will be better i off if we can complete Seabrook I and 2 as soon as posible." Nicholas Ashooh. Spokesman for Seabrook's major builder. Public Service Co. of New Hampshire responded in an nit I V"
[ervie Wg ~
{ Nuclear power plant at Seabrook, N.H. GLOBE PHOTO BY JOSEPH DENNtMY tshed. is 79 oercent buff t and the i
second reactor is 22.5 percent com. Duritag the hearings I
plete. brook's sponsors are ted toexpec. Sea - and times. In addition, some repeated cite &the dela I
defend their estimates that in a nu- recent stabilization in the priceilf i clear accident the seacoast around oil, which makes new nuclear, gen-Ashooh ackr.owledges Seabrook Seab cok could be evacuated in six eration no bargain. =a w 2 is taking its knocks in state regu- hours and five minutes on a sunny latory circles. " Regulation has al-
~ -
All those things. Paul l
ways been the bane of Seabrook, summer weekend when the beach ca man l
l from day one . ." he said. Earlier is crowded with tourists. The esti- e assachu - '
matejumps to 9 hou'rs and 15 min- c y mmission in the project, intervention came add up to increasingly dimi from the federal level, he said. "but utes in bad weather.
support for Seabrook 2. IM-now it seems we're seeing more ac. that everyone realizes the prop!!!R-tivity on the regional level." Estigates questioned ity of completion is lower nog -
The New England Coalition on it was, he said.
Still, federal scrutiny of Sea- Nuclear Pollution, the Seacoast Maine Utility Comr. IM~ -~ '-
brook continues. Last week. the Anti Pollution league and the state Gelder added: "As events Nuclear Regulatory Commission's of Massachusetts all question the more commissions have - -
Atomic Safety and Licensing Board adequacy of Public Service Co.s more certa!n that Seabrook 2 gathered in Dover and Exeter for evacuation estimates. They are for their companies . . . To thE~el-the first round of hearings on parties to the case. along with New tent that adds up. It makes the whether Seabrook should be grant. Hampshire (which has doubts likelihood of Seabrook 2's being ed an operating license. It is a high. about notification of tly state dur- completed more uncertain." tly stakes proceeding If the NRC ing an accident)
- 2 alne. an in-should deny the license and the terested observer. The borders of skepticism said that about in Maine. commissig Seabrook Incene-courts should uphold the denial, both Maine and Massachusetts are fled about one year ago, the owners of Seabrook would be. near Seabrook. -
out their investment, which totals
$2.1 billion to date. But theissues to be addressed in with the biggest stake in Sea-the NRC hearings, primarily emer- brook's future. Comr, Vincent laco-But Seabrook's backers can concerns gency planning, state regulators are far from voiced.- the ~pino"was cautkua'about anying take comfort in the knowh@G M as turned
- - ~ -
Mostwork on Seabrook 2 %
sto,be suspended until 1984 By Bruce A.
Globe Staff 11 as an important step toward even-tual cancellation. Asked if yester-
- 4. ' Oh The leading owner of the two day's decision increases the likell-Seabrook nuclear power plants in hood Seabrook 2 will be canceled. a i New Hampchtre finally caved en to Pubfit Service spokesman said. **ft ;
pressure from other uttilties fri the certainly doesn't help."
M%$Q g consortium and agreed yesterday Electric rates are not expected to su pend most construction work to be affected immedia:ely by the !
on the second reactor, decision, although the delay will re-But Public Service Co of New sult in higher construction costs Hrmpshire stopped short of canctl. and conseqtrntly higher rates for ins dcabrook a anogether. agree ng New England consumers if the inste;d to reduce work on sea.
_ nrmk 2 to ine lowest reasible lev. All ^16plant is eventually uttittles building Sea- completed.
el unut at least December 1984, brook supported a motion to delay dnQ proDaDiv much longer, construcilon of the second reactor Nonetheless, critics of the sec- at least until Seabrook 1 is operat-ond reactor saw yesterday's action SEABROOK. Page 35 Ltility group votes to suspend m 5SEABROOK said the proceedings were calm with little emo-l Continued from Page I tion.
ing. That Up until two weeks ago. Public Service had vote came af ter a motion to cancel the second been saying both units should be built as soon
- unit had been defeated by a vote of 53 pement to as possible. Public Service owns 35.5 percent of f 33 percent, with 14 percent of the utility owners the two plants and theoretically could block any abstaining. motion to delay or cancel either one. Delay re-The Seabrook project originally carried a quires a vote by 75 percent of the ownership price tag of less than 81 billion. The official and cancellation requires 80 percent.
price forecast now is $5.24 billion. and New A Public Service spokesman said the ut!!ity Hampshire utility regulators say the final bill is still committed to finishing the second reactor may run as high as 39 billion. and went along with the delay motion because Seabrook 1. which is 81 percent complete
- is of pressure being felt by its co-owners.
officially scheduled for completion by Dece nber Late last month the Connecticut Department 1984. But even Public Service is saying tht: unit of Public Utilities ruled that the financial esti-is not !!kely to begin producing electricity More mates for Seabrook 2 were not realistic and or-July 1985. Critics say Seabrook I will be com- demd United Illuminating Co. and Northeast pleted much later. Utiltles "to make every effort to disengage from Before yesterday's decision. Seabrook 2 was Seabrook Unit No. 2."
scheduled for completion by July 1987. Current- United Illuminating owns 17.5 percent of ly 1000 construction workers are employed on Seabrook. the second-largest share. Northeast's l Seabrook 2. Public Service said it was unknown Connecticut Light & Power subsidiary owns 4.1 how many of these workers would lose theirjota percent. poth utilities prevtously had supported as work levels are scaled back at the site. Public Service's efforts to push ahead with Sea-Public Service is required to report on the ft. brook 2. -
nancial Impact of yesterday's decision at the But yesterday the two Connecticut utilities next meeting of the Seabrook owners in Octo. made both the cancellation motion and the de-ber. lay motion. United Illuminating had no com-Utility executives attending the closed meet- ment after the meeting. but a Northeast spokes-ing at the Seabrook power station yesterday , man said his. company viewed the decision to i ,. .
00CKETE9 SERVICE OF PROCESS US.%: -
I certify copies of the enclosed " PETITIONER DDHERTY'S NOTICEMF @@FEAIN0id91 " JOHN F. DOHERTY'S BRIEF IN SUPPORT OF HIS APPEAL OF THE NOVEM3ER 15,1983, LICZNSING BOARD LFF F v -- ,-
DEliIAIi:0,FJHIS. ?ETITION FOR L_' AVE TO INTERVENE" were served via First CY$EY U. S. Postal Service this/WI'of December, 1983, from Soston, Massachusetts, -on the Dersons below:
Alan S. Rosenthal, Chairman, Atomic Safety Licensing & Appeal Board Gary J. Edles, Member, Atomic Safety Licensing & Appeal Board Howard A. Wilber, Member, Atomic Safety Licensing & Appeal BoarC Helen F. Hoyt, Chairnerson, Atomic Safety & Licensing Board Emmeth A. Luebke, Member, Atonic Safety & Licensing Board Jerry Harbour, Member, Atomic Safety & Licensing Board Thonas G. Dirnan Jr., Esc., Apolicant Counsel Roy F. Lessey, E s c .' , HRC Staff Counsel Docketing & Service Branch, U. S. Nuclear Regulatory Comnission David R. Lewis, Es ., Law Clerk, Atomic Safety & Licensing Board Ro'7ert A. Backus, Esq. , Seacoast Anti-Pollution League William S. Jordan,Es . , New Ensland Coallition on liuclear Pollution Jo Ann Shotwel'., Esc., Commonwealth of Massachusetts Restectfu'l Submitted, hk/Y$r.
John F. Doherty
.