ML20083B468

Brief Supporting ASLB Denial of Je Doherty Petition for Leave to Intervene.No Litigable Contention Presented. Certificate of Svc Encl

ML20083B468
Person / Time
Site:	Seabrook
Issue date:	12/16/1983
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8312210166
Download: ML20083B468 (19)

Text

_ - _ _ _ _ _ _ . _ _ _ _ . - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

DOCKETED USNRC 8 DEC 20 Aji:21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION fi T F ' ~ _ r-before the ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

)

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

)

< (Seabrook Station, Units 1 & 2) )

)

APPLICANTS' BRIEF ON THE APPEAL OF JOHN H. DOHERTY Thomas G. Dignan, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants 8312210166 831216 PDR ADOCK 05000443 o eDn

-fo

TABLE OF CONTENTS Page STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 5 I. THE LICENSING BOARD'S EVALUATION WITH RESPECT TO THE GRANT OR DENIAL OF THIS LATE-FILED PETITION TO INTERVENE DOES NOT CONSTITUTE AN ABUSE OF DISCRETION . . . . . . . . . . . . . . 5 A. THE APPLICABLE LEGAL STANDARD . . . . . . . 5 B. GOOD CAUSE, IF ANY FOR FAILURE TO FILE ON TIME . . . . . . . . . . . . . . . . . . 6 C. THE AVAILABILITY OF OTHER MEANS WHEREOF THE PETITIONER'S INTEREST WILL BE PROTECTED . . . . . . . . . . . . . 7 D. THE EXTENT TO WHICH PETITIONER'S PARTICIPATION MAY REASONABLY BE EXPECTED TO ASSIST IN DEVELOPING A SOUND RECORD . . . . 7 E. THE EXTENT TO WHICH THE PETITIONER'S IN1EREST WILL BE REPRESENTED BY EXISTING PARTIES . . . . . . . . . . . . . . . . . . 9 F. THE EXTENT TO WHICH THE PETITIONER'S PARTICIPATION WILL BROADEN THE ISSUES OR DELAY THE PROCEEDING . . . . . . . . . . . 10 II. THE DECISION OF THE LICENSING BOARD SHOULD BE AFFIRMED ON THE SEPARATE AND ADDITIONAL GROUND THAT NO LITIGABLE CONTENTION HAS BEEN PRESENTED . . . . . . . . . . . . . . . . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . 11

-i-

TABLE OF AUTHORITIES Cases Page Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-526, 9 NRC 122 (1979) . . . . . . . . . . . . . . . . . . . . 6 Commonwealth Edison Co. (Zion Station, Units 1 & 2),

ALAB-226, 8 AEC 381 (1974) . . . . . . . . . . . . 10 Duke Power Co. (Cherokee Nuclear Station, Units 1, 2&

3), ALAB-440, 6 NRC 642 (1977) . . . . . . . . . . 7 Gulf States Utilities Co. (River Bend Station, Units 1

& 2), ALAB-444, 6 NRC 760 (1977) . . . . . . . . . 7

, Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 122 (1979) . . . . . . . . . . . . . . . . . . . . . . 6 Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508 (1982) . . . . . . . . . . . . . . . . . . . . 8, 10 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC , CCH Nuc.

Reg. Rep. 1 30,815 (Sept. 29, 1983) . . . . . . . 6, 8 i Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 16 NRC 1725 (1982)

. . . . . . . . . . . . . . . . . . . . . . . . . . 6 South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981) . . . . . . . . . . . . . . . . . . . . . . 5 South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-11, 13 NRC 420, 427 (1981) . . . . . . . . . . . . . . . . . . . . 7 Washington Public Power Supply (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC (Nov. 15, 1983) . . . . . . . . . . . . . . . . . . . . 6, 8, 9

-ii-

- Regulations 10 CFR S 1.61 . . . . . . . . . . . . . . . . . . . 10 10 CFR.5 2.714(a)(1) . . . . . . . . . . . . . . . 5 10 CFR S 2.714a . . . . . . . . . . . . . . . . . . 1 10 CFR 5 2.764(f) . . . . . . . . . . . . . . . . . 10 10 CFR Part 2, App. A . . . . . . . . . . . . . . . 10 Other 46 Fed. Reg. 51331 . . . . . . . . . . . . . . . . 2

-lii-

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

)

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

)

(Seabrook Station, Units 1 & 2) )

)

APPLICANTS' BRIEF ON THE APPEAL OF JOHN H. DOHERTY STATEMENT OF THE CASE This is an appeal pursuant to 10 CFR S 2.714a of the denial by the Licensing Board of a late-filed petition for leave to intervene.

Under date of September 6, 1983, John F. Doherty (hereinafter the " Petitioner") filed a petition for leave to intervene in the above-entitled matter. The petition was filed some twenty-one months after November 18, 1981, the last date allowed for fi_ing petitions to intervene

according to the Notice of Hearing. 46 Fed. Reg. 51331 (Oct. 19, 1981).

The petition recited that the Petitioner had acquired standing to intervene by moving to Boston only some ten or eleven weeks prior to filing, Petition at 5, and that various matters had served to " dis-alert" him from filing during what he characterized as "an approximate two month delay', id. at 6. The petition purported to deal with each of the five factors to be considered with respect to a late

' filed petition including a statement with respect to the third factor -- the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record -- which, in its entirety, reads as follows:

" Petitioner participated in all phases of the Allens Creek construction permit proceedings from 1978 to 1982. The issue here raised goes to the soundness of one of the two licensings under consideration. If the Seabrook Unit 2 license is granted, the record will be improved by a consideration by the Board of what effect, if any, licensing a plant 22%

complete and faced with financial uncertainties likely to stretch total construction time, can have on the health, safety, and economic interests of the public.

In view of the language of 10 CFR 50.57(a)(1),

evidence taken on this contention would strengthen the record." Petition at 6-7.

In addition, the petition set out the issue he wished to litigate as follows:

"Public Service Company of New Hampshire's Application for an Operating License for Seabrook Station, Unit 2, is premature because the unit is but 22% complete and many more than four years are likely to remain before the unit is substantially completed in conformance with N.R.C. rules and regulations.

Application for an operating license for this unit now, violates 10 CFR 50.57(a)(1) and granting the operating license with the unit but 22% completed or not substantially completed threatens those health, safety, and eccnomic interests of Petitioner set forth above. The Board should deny the operating license for Unit 2 until the Applicant has substantially completed it." Petition at 2.

The Applicants and Staff thereafter responded to the petition, each taking the position it should be denied. The Petitioner then filed an amended petition which, inter alia, replied to the arguments made by the Staff and Applicants.

In that document the Petitioner amended his contention, "by the insertion of a sentence from the ' Supporting Statement,'" so as to make it read as follows:

"Public Service Company of New Hampshire's Application for an Operating License for Seabrook Station, Unit 2, is premature because the unit is but 22% complete and many more than four years are likely to remain before the unit is substantially completed in conformance with NRC rules and regulations.

Application for an operating license for this unit now, violates 10 CFR 50.57(a)(1) and granting the operating license with the unit but 22% completed or not substantially completed threatens those health, safety and economic intersts of Petitioner set forth above. With 78% of the plant on paper, the Board cannot adequately control the outcome of the plant's systems, in particular, the high i

pressure core injection, high pressure core spray, low pressure core injection, low pressure core spray, pressurizer, standby liquid control system, reactor coolant leak detection system, ESF sequencer and make-up system (CVCS), sufficiently to protect Petitioner's interests. The Board should deny the operating license for Unit 2 until the Applicant has substantially completed it."

Amended Petition at 6.

In addition, the amended petition addressed the various arguments which had been made on the "five factors", stating in. response to the argument on the third (contribution to the record) factor:

" Applicant has quoted a footnote from Houston Lighting & Power Company, (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 513, n. 14, (1982) with regard to the third factor,-extent to which Petitioner's participation may reasonably be expected to assist in developing a sound record, in particular that sound evidence is the significant consideration. This could hardly mean that the Petitioner must turn up a list of Nobel prize winning expert witnesses in their behalf. Rather, participation means the subject matter which will be introduced into the hearing by admission of the proposed contention. In ALAB-671, the Petitioner attempted to Intervene on a financial qualification contention that had been heard two months previously by the Licensing Board.

The evidence on the issue had already taken two full days, and in the interim the Commission, through rulemaking, had determined financial qualifications were no longer within Commission jurisdiction. However, in this Petitioner's case, participation will not be repetitive and is likely to produce evidence which will assist in the development of a sound record (that is, one without void places where there should be substance) by covering the evident failure to meet a Ccmmission regulation on the part of the Applicant. In Houston (supra) there was no void; the issue had already been covered in the hearings.

The Staff, citing ALAB-671 (Staff's Response, page 6) argues that since the Staff evidently believes this Petitioner cannot produce any

'significant contribution', it would be better not to consider the issue at all. The Staff has not suggested any way this issue can be raised without Petitioner's participation."

Amended Petition at 4-5.

The Staff and Applicants thereafter replied to this amended petition.

On November 15, 1983, the Licensing Board issued its order denying the petition. The Board considered each of the so-called "five factors". The Board found no good cause for failure to file earlier, Order at 4-6; found that the second factor (" availability of other means") weighed in favor of allowance but noted this factor in the circumstances weighs less than others; found there was no demonstration that Petitioner's participation would assist in developing a sound record; gave slight weight to the petition with respect to the fourth factor; and as to the fifth (or delay) factor found the Petitioner had left the Board "without a standard against which to test Petitioner's concerns to determine if his contention could be litigated at this time." This appeal followed.

______-_a

ARGUMENT I. THE LICENSING BOARD'S EVALUATION WITH RESPECT TO THE GRANT OR DENIAL OF THIS LATE FILED PETITION TO INTERVENE DOES NOT CONSTITUTE AN ABUSE OF DISCRETION A. THE APPLICABLE LEGAL STANDARD It is well settled that a Licensing Board's evaluation of the five factors to be considered in analyzing a late filed petition to intervene, see 10 CFR $ 2.714(a)(1), will not be disturbed on appeal absent a showing of an abuse of discretion. South Carolina Electric and Gas Co. (Virgil C.

Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 885 (1981); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 16 NRC 1725 (1982); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC , CCH Nuc. Reg. Reptr. U 30,815 at

p. 30,975 & n.36 (Sept. 29, 1983); Washington Public Power Supply (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC ,

Slip Op. at 4 (Nov. 15, 1983). As seen below no abuse of discretion has occurred here.

B. GOOD CAUSE, IF ANY FOR FAILURE TO FILE ON TIME .

The Licensing Board correctly determined that no showing of good cause had been made. The Petitioner offered two excuses for the fact that the petition was late by twenty-

l one months. First, he noted that he had no standing for nineteen of the twenty-one months by virtue of residence in Texas. 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 Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-526, 9 NRC 122, 124 (1979). Recognizing that he must also justify the period from June 23, 1983, to September 6, 1983, when he was not in any way disabled from filing, ALAB-743 supra at

p. 30,977, the Petitioner argues that various matters severed to " dis-alert" him from pressing his contention.

However, allowing oneself to be lulled by,misperceptions is no excuse. 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).

C. THE AVAILABILITY OF OTHER MEANS WHEREOF THE PETITIONER'S INTEREST WILL BE PROTECTED The Board agreed that this factor weighed slightly in favor of granting the petition. However, the Board held "this factor weighs less than other factors to be considered." Order at 7. It is with this aspect of the I

I

Licensing Board's treatment of the second factor, that Petitioner now quarrels. Petitioner's Brief at 10-11. The Licensing Board's treatment of this factor is appropriate.

See South Carolina Electric & Gas Co. (Virgil C. Sumner Nuclear Station, Unit 1), LBP-81-11, 13 NRC 420, 427 (1981).

A litigant who is as untimely in his intervention effort as this Petitioner has been found to be does not present a sympathetic case for concern that no other forum will be able to redress his grievances.

D. THE EXTENT TO WHICH PETITIONER'S PARTICIPATION MAY REASONABLY BE EXPECTED TO ASSIST IN DEVELOPING A SOUND RECORD l We have quoted above, supra at 2, 4, the Petitioner's entire effort to persuade the Licensing Board with respect l to the third factor. In addition, his brief to this Appeal l

Board seeks to add to that effort (which is wholly bereft of any attempt to describe any evidence he plans to adduce) by stating his intent to put in his case through cross-examination and claiming the experience of cross-examining seventy-five witnesses in another proceeding. Petitioner's Brief at 11-12. Prescinding from the fact that the correctness of the Licensing Board's ' decision must be judged only on the basis of what was presented to it, ALAB-747, supra, Slip Op. at 18 n. 29, the rule is that "it is the

_g.

ability to contribute sound evidence - rather than asserted legal skills - that is of significance in considering a late-filed petition to intervene." Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-671, 15 NRC 508, 513 at n.14 (1982).

It is now settled that in addressing the third criterion a pe._ tioner:

"should set out with as much particularity as possible the precise issues [he] plans to cover, identify [his] prospective witnesses, and summerize their proposed testimony.

[ Citation] Vague assertions regarding petitioner's ability or resources . . . are insufficient." ALAB-704, supra, 16 NRC at 1730.

Accord, ALAB-743 at p. 30,978; ALAB-747; supra Slip Op. at

18. In ALAB-747, the minimum standard to be met by a petitionar was articulated as requiring the petitioner to:

"both (1) identify specifically at least one witness it intends to present; and (2) provide sufficient detail respecting that witness' proposed testimony to permit the Board to reach a reasoned conclusion on the likely worth of that testimony . . . ." Slip Op. at 26.

In his concurring opinion Judge Edles stated that ALAB-747 and the precedents upon which it is based should not be read as requiring a late intervenor to put forth an affirmative case. He indicated that a late intervenor could meet the criterion by making a showing based upon a proposed

_g_

case based entirely upon cross-examination. It is unnecessary in this appeal to address the legal issue raised by Judge Edles because, even assuming a late intervenor can satisfy the third criterion based upon evidence to be derived from cross-examination only, this Petitioner has not made the necessary showing. There is not one jot of description of specific evidence he hopes to adduce through cross-examination in any paper filed to date. We are told only that he participated in another NRC proceeding with respect to certain undescribed issues. This Board has rejected such an assertion as being without substantive weight in a late-filed intervention context, at least absent a showing of similarity in issues between the prior and current proceeding. ALAB-747, supra, Slip Op. at 18-20.

E. THE EXTENT TO WHICH THE PETITIONER'S INTEREST WILL BE REPRESENTED BY EXISTING PARTIES The Licensing Board gave weight to the Petitioner on this factor.

F. THE EXTENT TO WHICH THE PETITIONER'S PARTICIPATION WILL BROADEN THE ISSUES OR DELAY THE PROCEEDING The Licensing Board reached the Conclusion that the Petitioner had simply not given enough information to make any meaningful evaluation of this factor. Certainly the Petitioner's Brief to this Board, Petitioner's Brief at 13-15, does nothing to call that conclusion into question.

While he states on appeal that his case on cross-examination will take only three days, the Petitioner has provided "no basis for judging how much time might be necessary for pre-trial preparation (including possible discovery) in connection with [his issue]", ALAB-671, supra, 15 NRC at 514.

II. THE DECISION OF THE LICENSING BOARD SHOULD BE AFFIRMED ON THE SEPARATE AND ADDITIONAL GROUND THAT NO LITIGABLE CONTENTION HAS BEEN PRESENTED Both before the Licensing Board and this Appeal Board, the Petitioner operates under two basic misconceptions of the law. He repeatedly assumes that the Licensing Board actually issues operating licenses. It does not; DNRR does.

10 CFR S 1.61. See also 10 CFR 5 2.764(f); 10 CFR Part 2, App. A $ VIII(c). Second, he assumes that only a Licensing Board can make the finding that a unit is substantially

completed. This too is in error. Commonwealth Edison Co.

(Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 410-411 (1974). .

Building upon the foundation of these two misunderstandings, the Petitioner has articulated his belief that the application for an operating license for Seabrook No. 2 is premature. The Licensing Board has no jurisdiction to decide this question. It has been directed to decide controverted issues in the case before it. It is not empowered to undo the Commission's implicit determination in the notice of hearing that the hearing as to Unit 2 should not be deferred.

CONCLUSION The decision of the Licensing Board should be affirmed.

Respectfully submitted,

/

/ '

s YW. '

Thomas G. Dignan,-fdr. 'f R. K. Gad III /

/

Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Dated: December 16, 1983

CERTIFICATE OF SERVICE I, Thomas G.Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on December 16, 1983, I mcde service of the within document by mailing copies thsrsof, postage prepaid, to:

Alan S. Rosenthal, Chairman Gary J. Edles, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Howard A. Wilber, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Helen Hoyt, Chairperson Ms. Diana P. Randall Atomic Safety and Licensing 70 Collins Street Bocrd Panel Seabrook, NH 03874 U.S. Nuclear Regulatory Commission Washington, DC 20555 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 Suite 506 Commission Washington, DC 20006

-Washington, DC 20555 Dr. Jerry Harbour G. Dana Bisbee, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Office of the Attorney General U.S. Nuclear Regulatory 208 State House Annex Commission Concord, NH 03301 Washington, DC 20555

o Atomic Safety and Licensing Roy P. Lessy, Jr., Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555 Philip Ahrens, Esquire Anne Verge, Chairperson Assistant Attorney General Board of Selectmen Department of the Attorney Town Hall General South Hampton, NH 03827 Augusta, ME 04333 Charles Cross, Esquire JoAnn Shotwell, Esquire Shaines, Madrigan & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney General P. O. Box 366 One Ashburton ' lace, 19th Floor Portsmouth, NH 03842 Boston, MA 021'8 <

! Ms. Roberta C. Pevear Mr. Patrick J. McKeon

[ Assistant Attorney General Selectmen's Office the Town of Hampton Falls 10 Central Road Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 .

Mrs. Sandra Gavutis Mr. Calvin A. Canney Assistant Attorney General City Manager the Town of Kensington City Hall RFD 1 126 Daniel Street East Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 I

l

i . . . .

o Senator Gordon J. Humphrey Mr. Richard E. Sullivan 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Donald E. Chick Town Manager's Office Town Nanager Town Hall Town of Exeter Friend Street 10 Front Street Amesbury, MA 01913 '

Exeter, NH 03833 Brian P. Cassidy, Esquire Brentwood Board of Selectmen Regional Counsel RFD Dalton Road l Federal Emergency Management Brentwood, NH 03833 Agency - Region I 442 POCH Boston, MA 02109 Gary W. Holmes, Esquire Holmes & Ells 47 Winnacunnet Road Hampton, NH 03841 -

?

/

/

4 M/, '

~ Thomas G. Dig n, Jf

_ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _