ML20087A562
| ML20087A562 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/05/1984 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ALAB-758, OL, NUDOCS 8403080142 | |
| Download: ML20087A562 (11) | |
Text
m-00CKETED U9EC UNITED STATES OF'3d4EEItA7 A11 :06 NUCLEAR REGULATORY COMMISSION 0 before the
~ I ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
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
)
)
APPLICANTS RESPONSE TO "SAPL APPEAL OF DENIAL OF MOTION TO DISMISS APPLICATION FOR SEABROOK UNIT 2" BACKGROUND On February 17, 1984 the Seacoast Anti-Pollution League (SAPL) filed with this Appeal Board a twelve page document entitled "SAPL Appeal of Denial of Motion to Dismiss Application for Seabrook Unit 2" (SAPL Appeal).
By an order
. issued February 24, 1984 this Appeal Board directed the other parties to treat the SAPL Appeal as a motion for directed certification under 10 CFR E 2.718(i).
By this motion SAPL seeks interlocutory review of two rulings made by the Licensing Board in a Memorandum and Order issued January 13, 1984.
Therein the Licensing Board 8403080142 840305 PDR ADOCK 05000443 s<. D* "7 0
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denied a Motion filed by SAPL to Dismiss the OL Application for Seabrook Unit 2 and also denied a motion filed by SAPL to admit the following late filed contention:
"The operating license hearings for Seabrook Unit 2 are untimely and premature because unit 2 construction will not meet the levels of substantial completion required for license issuance for many years."
Although it does not appear from the title of the SAPL Appeal, it is clear from the text of the argument therein contained, SAPT Appeal at 6-11, and the prayer for relief in the last sentence, SAPL Appeal at 12, that SAPL brings both rulings up for review.
While certain procedural arguments might be applicable to one of the rulings as opposed to another,1 this response wil assume that no fatal procedural deficiency exists and that the issue for discussion properly is:
"Should directed certification be granted to review and decide on the merits the question of whether the Operating License proceeding below insofar as it deals with Unit 2 should be terminated?"
We address this issue below on two bases.
First, we argue that the underlying criteria for permitting directed certification are not present here.
Second, as required by the decision in ALAB-734,2 we address the merits of the issue.
I.
THE ISSUE PRESENTED IS NOT PROPERLY ONE FOR DIRECTED CERTIFICATION In ALAB-405, the Appeal Board laid down the two alternative criteria for the grant of directed certification:
"Almost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which could not be alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner."
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station), ALAB-405, 5 NRC 1190, 1192 (1977)."
In its motion, SAPL, properly we submit, does not
, attempt to rely on the first criteria.
It relies only on the concept that the Licensing Board's ruling will affect the basic structure of the proceeding in a pervasive or unusual manner.
SAPL Appeal at 1.
+
Having so asserted, SAPL then argues in essence that the " pervasive and unusual" effect of the ruling is that the ruling will somehow affect "the ability of intervenors to file timely contentions based on health and safety issues y
concerning vital safety systems yet to be installed in Unit 2."
SAPL Appeal at 1.
The ruling has no such affect.
The
" vital safety systems" to be installed in Unit 2 were, like those of Unit 1, laid out in the FSAR.
If someone wanted to complain about a contemplated Unit 2 (as distinguished from i-.
~
Unit 1) system they could and should have done so when the original notice of hearing was published.
Indeed nothing in the Licensing Board's decision prohibits an intervenor from filing such a contention (on a late filed basis) now.
The balance of the SAPL motion is addressed to the merits of the issue presented.
Thus there has been no meaningful satisfaction of the initial criteria for the grant of directed certification.
And there cannot be.
If SAPL is right on this issue, which it is not for reasons set out below, this Appeal Board will, assuming an Initial Decision issues authorizing issuance of two operating licenses, simply vacate the decision insofar as it applies to Unit-2.
If this ruling is upheld by the Commission then presumably at some later date a new notice of opportunity
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for hearing will issue with respect to Unit No. 2 and SAPL can request a hearing and make whatever contentions it wishes with respect to that unit.
If SAPL is wrong on the issue then on the subsequent appeal of an initial Decision favorable to the Applicants, authorization of the Unit 2 operating license will be upheld.
To illustrate how unworthy this issue is of extraordinary interlocutory review one need only consider the following:
Should this Appeal Board grant directed certificaton and reverse the Licensing Board's decision, the parties would be relieved of trying, and the Licensing Board would be relieved of the duty of deciding, not one single, - - _
matter now pending.
This is so because not one litigable issue has yet been raised which applies to Unit 2 alone.
And 'APL has favored us with no illustration of such an issue in the motion at bar.
II.
SAPL'S CLAIM HAS NO MERIT AS A MATTER OF SUBSTANCE The first substantive legal argument made by SAPL in support of its request for relief is based on the concept that Section 185 of the Atomic Energy Act requires a separate hearing for Unit 2.
This argument has been considered and rejected at least twice by Appeal Boards.
. Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 410-11 (1974); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-758, 19 l
NRC
- n. 18, Slip Op at 8 n. 18 (Jan. 24, 1984)
The second substantive legal argument is apparently based on the concept'that a separate hearing on Unit 2 should be required as a matter of discretion.
SAPL Appeal at 11-12 citing NRC Denial of Petition for Rulemaking, Dkt No. PRM-2-11, 47 Fed. Reg. 46524 (Oct. 19, 1982).
To begin with, it would appear that such an exercise of discretion.can be engaged in only by the commission itself.
The Commission has never made a delegaton of its-powers under 10 CFR 6 2.104 to decide whether a hearing not otatutorily mandated shall be held in the public interest.
Compare 10 CFR 5 2.785.
Prescinding from that minor
~..
e jurisdictional problem, SAPL has presented no case for an exercise of such discretion in its favor.
Other than the
" purely legal in character" issue, ALAB-758, supra, Slip Op.
at 5, presented now by this appeal neither SAPL, nor any other opponent of Seabrook has presented one contention litigable in an operating license proceeding which distinguishes between Unit 2 and Unit 1.
This is not surprising because the design of the units is, for all practical purposes, identical.
In such circumstances to mandate a new separate evidentiary hearing is to accomplish nothing but to assure further employment for the bar.
Finally, SAPL makes a great deal of the fact that there is no set completion date for Unit 2 and refers to it as indefinitely postponed.
Unit 2 was postponed in the sense that the Joint Owners decided to complete certain work and thereafter proceed on Unit 2 at the lowest feasible level until Unit 1 was completed.
As we have advised the Board and Parties by letter of March 1, 1984, a new study has resulted in'a new interim fuel load date for Unit 2 assuming adherence to the above described course of action of July 31, 1990.
Thus, to the extent there is some " magic" to having a "date" there now is one.
CONCLUSION.
In ALAB-758 this Appeal Board stated that the Licensing Board's decision as to which SAPL here seeks interlocutory review "is not manifestly (or even probably) erroneous.",
9 -
ALAB-758, supra, Slip Op. at 8.
That conclusion should be explicitly reaffirmed.
The motion should be denied.
Respectfully submitted, frG./s Thomas G.
Dignan, Jr.
R. K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Dated:
March 5, 1984 -
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FOOTNOTES 1.
There is no such device as a " motion to dismiss" provided for in the NRC Rules of Practice.
There is a summary disposition procedure.
10 CFR 5 2.749.
It has been held that the failure to comply with the detailed procedures set out-in the rule is fatal to a Summary Disposition motion.
- See, e.g.,
Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-77-45, 6 NRC 159, 163 (1977).
It is possible that SAPL, realizing that its " motion to dismiss" did not meet the formal requirements of 10 CFR S2.749, decided also to file a late filed contention to preserve its point.
While such action might serve to better preserve SAPL's issue for final appeal, it results in SAPL runnir.g afoul of the principle that directed certificaton of.the issue of whether a contention should have been admitted is not favored.
Project Management Corp. (Clinch Rivar Breeder Reactor Plant), CLI-76-13, 4 NRC 406, reconsid. denied, ALAB-330, 3 NRC 613, reviewed and reversed in part on other grounds sub nom.
U.S.E.R.D.A.
(Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976).
See also Public Service Company of Indiana, Inc. (Marble Hill Generating Station, Units 1 and 2), ALAB-339, 4 NRC 20, 22-23 (1976).
2.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11, 14 n.4 (1983).
CERTIFICATE OF SERVICE M ((
I, Thomas G.Dignan, Jr., one of the agprpyys7 f4M $6e Applicants herein, hereby certify that on March 5, 1984, I made service of the within document by mailing copies thereof, postage prepaid, to:
"g, gge s BRANCH 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 Board 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 Commiscion 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 Atomic Safety and Licensing Robert G.
Perlis, 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
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Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel 116 Lowell Street l
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-U.S.
Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555 i
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Philip Ahrens, Esquire Anne Verge, Chairperson Assistant Attorney General Board of Selectmen Department of the Attorney Town Hall General South Hampton, NH 03827
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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 Place, 19th Floor Portsmouth,.NH 03842 Boston, MA 02108 j
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Ms..Roberta C.
Pevear Mr. Patrick J. McKeon Assistant Attorney General Selectmen's Office the Town of Hampton Falls 10 Central Road 2
Drinkwater Road Rye, NH 03870
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Hampton Falls, NH 03844 i
Mrs.. Sandra Gavutis Mr. Calvin A. Canney Assistane, 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 i
r U.S.
Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 I
Senator.Gordon J. Humphrey Mr. Richard E.
Sullivan
-1 Pillsbury-Street Mayor
' Concord, NH f03301 City Hall (Attn: -Herb Boynton)
Newburyport, MA 01950 Mr.. Donald E. Chick Town Manager's Office l
Town Manager Town Hall Town:of Exeter Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833
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~ Brian P. Cassidy, Esquire Brentwood Board of Selectmen Regional Counsel RFD Dalton Road 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 1
TEomas G'. DipyfwGi, Jr.
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