ML20149K890
| ML20149K890 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/18/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC |
| References | |
| CON-#188-5649 OL-1, NUDOCS 8802240029 | |
| Download: ML20149K890 (28) | |
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cxnuco UbHRC February 18, 1988 16 RG 22 P3:29 UNITED STATES OF AMERICA ggrkNl}M!h' ICE 00C
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before the sp NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, 31 Al.
)
50-444-OL-1
)
(Seabrook Station, Units 1 and 2)
)
(On-site Emergency
)
Planning and Safety
)
Issues)
APPLICANTS' PETITION FOR REVIEW OF ALAB-883 The Applicants, pursuant to 10 CFR 5 2.786, hereby petition the Commission to review and reverse the decision of the Atomic Safety and Licensing Appeal Board ("Appeal Board")
handed down in this proceeding on February 3, 1988 and denominated ALAB-883.
Pursuant to 10 CFR 5 2.786(b) (2), the following is provided:
(i)
Concise Summary of the Decision or Action of Which Review Is Soucht ALAB-883 is a decision in which the Appeal Board granted two motions to reopen the evidentiary record filed by the Attorney General of The Commonwealth of Massachusetts, remanded the proceeding to the Licensing Board to allow litigation with respect to an aspect of the Seabrook Nuclear 88022400p9 800218 DR ADOCK 05000443 5
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f Power Station ("Seabrook") as to which no contentions had been admitted prior to closing of the record, and also entered an order precluding low power operation of Seabrook until completion of the romand.
The remand is for the purpose of (1) having the Licensing Board receive for inclusion in the record an Applicants' alternative of public notification system for the portion of the Seabrook EPZ located in The Commonwealth of Massachusetts ("The Commonwealth"), such alternative system being required because of the dismantlement of the previous in-place notification system caused in whole or in part by the actions and inaction of The Commonwealth (2) permitting all parties to the proceeding to file additional contentions challenging the adequacy of the proposed substitute system and (3) thereafter resolving such contentions as are filed.
In reaching its decision, the Appeal Board rejected an argument of the Applicants that the actions of The Commonwealth and its political subdivisions and agencies in contributing to the dismantlement of the priur system estopped Mass. AG from obtaining the reopening he requested.
In addition, the Appeal Board held that certain language set forth in a Statement of Considerationsl in connection with a prior rulemaking decision issued by this Commission 1
Statement of Considerations accompanying 10 CFR 5 50.47(d), 47 Fed. Reg. 30,232 (1982).
precluded, as a matter of law, low power operation of Seabrook pending completion of the remand.
(ii)
Statement as to Whether Matters Raised in the Petition Were Raised before the Acceal Board The estoppel argument was raised in the Applicants' Brief (a copy of which is attached and marked "A")
before the Appeal Board.2 The issue of whether low power operation could take place during any remand was deliberately not argued in that brief because (a) no request for such a ruling in fact was made in Mass. AG's motion,3 and (b) because Applicants believed that resolution of such an issue would properly be the province of the cognizant hearing board when, as, and if the remand on notification became the possible blocking item for low power operation.4 Thus, no opportunity was ever given for the Applicants to raise the arguments made herein as to this issue before the Appeal Board.
2 Acolicants' Answer to "Contention of Attorney General James M.
Shannon on Notification System for Massachusetts and Motion to Admit Late-Filed Contention and Reocen Record" (Jan. 25, 1988) at 5-9.
1 3
See Contention of Attorney General James M.
Shannon i
on Notification System for Massachusetts and Motion to Admit Late-Filed Contention and Reocen Record (Jan.
7, 1988) at 9.
4 See Aeolicants' Brief, supra n. 2 at 2-3 and n.4.
r (iii)
Concise Statement Why In the Petitioner's View the Decision Is Erroneous As set forth below, Applicants bring this petition seeking relief with respect to two aspects of ALAB-883.
These are (1) the ruling that actions of a "sovereign state" which served to dismantle a perfectly adequate prompt notification system do not estop that state from obtaining an adjudicatory hearing on the substitute system required by its own acts, and (2) the ruling that contencions as to that substitute system must be fully resolved through the adjudicatory process before low power operation is authorized.
a.
The Rulina on Estocoel The gravamen of the Appeal Board's decision on the estoppel argument is found in the following language:
The short of the matter thus is that the loss of the sirens (or, as applicants would have it, the destruction of their ' fully adequate early notification system') did not stem from some unlawful or untoward act on the part of the Commonwealth or its agencies or political subdivision.
(ALAB-883, Slip QE2 at 10.)
(Emphasis added.)
The Appeal Board's error, likely engsndered by its perhaps understandable concentration on the sharpness of the tone of the Applicants' Brief5 was to view estoppel as arising only 5
The Appeal Board noted its appreciation of "the frustration of the applicants" and went on to state "that frustration cannot serve to justify entirely unfounded charges that, among other things would cast a sovereign state and its agents and political subdivisions in a role equivalent to that played by one who enters a nuclear plant illicitly and then engages in a most serious form of federal
_4
where the party estopped had engaged in "some unlawful or untoward act."
This is not the law.
In non's of the cases cited in our Brief was the action giving rise to estoppel "unlawful" or "untoward."
Ir.de ed, in one, the act giving rise to estoppel was the passage of a perfectly legal state law.
See Aeolicants' Brief at 7, n.
9.
Estoppel simply does not require an unlawful or an untoward act as an underlying premise and the Appeal Board erred in so holding.
Nor is estoppel barred by virtue of the fact that the pole permits for the sirens other than in Newburyport had been issued ultra vires (according to dicta in a U.S. Court of Appeals decision).
The commonwealth and its political subdivisions could legally have assured continued validity of the siren system in any number of ways (as evidenced by the existence of two such systems around operating nuclear plants in The commonwealth and one such system for a plant in an adjoining state) and would have done so had they decided to obey the state law requiring emergency planning for nuclear facilities.
b.
The Preclusion of Low Power Ooeration Separate and apart from its ruling on estoppel, the Appeal Board, relying on the language in a rulemaking Statement of Considerations, held, as a matter of law, that criminal conduct."
Applicants admit to frustration.
Despite this, the brief did n2t charge "a serious form of federal criminal conduct" (Section 236 of the Atomic Energy Act applies only to operating plants on its face.); nor did it analogize to an illicit entry.
low power operation of Seabrook must await both the establishment and litication of the early notification system for the Massachusetts portion of the EPZ.
One can assume, arauendo, that the Commission contemplates the existence of a Staff approved prompt notification system for the entire EPZ before low power operation can be authorized.6
- Indeed, Applicants do not herein contend that there should not be in place a staff approved prompt notification system before low power operation is authorized.
However, saying a system must be in place is not the same as saying that, as a matter of law, all contentions as to that system must be fully litigated to resolution before low power authorization.
Indeed, such a rule would seem to run afoul of 10 CFR
$ 50.57(c) and the agency case law indicating that whether a given contention or regulation bars low power operation is properly determined on the facts of each case.7 It also ignores the portion of the rulemaking statement of basis relied upon by the Appeal Board which indicates that only l
6 This is questionable.
In the same rulemaking, the Commission acknowledges that "the additional time available (at least 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />), even for a postulated low likelihood sequence which would eventually result in release of the fission products accumulated at low power into the containment, would allow adequate precautionary actions to be taken to protect the public near the site."
47 Fed. Reg. at 30233.
In 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> the Massachusetts portion of the Seabrook EPZ could be notified by local police or other in-place means.
7 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-83-27, 18 NRC 1146, 1149-50 (1983); Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-21,20 NRC 1437, 1440 (1980).,.
C "pertinent portions" of 10 CFR 5 50.47 (b) (5) need be satisfied for low power operation.
47 Fed. Reg. at 30232, which further implies a dichotomy between the requirements for full and low power.
The effect of the Appeal Board's decision is to require that all contentions as to the Seabrook early notification system must be fully resolved even if the hearing board was satisfied that during low power operation there exists no need for a complete system which fully complies with 10 CFR 5
- 50. 47 (b) (5) for that portion of the EPZ that lies in Massachusetts.8 See note 6, supra.
This is error and should be corrected.
(iv)
Why Commission Review Should Be Exercised The estoppel question raises an important question of policy for this agency:
"Should those states who frustrate the Commission's reasonable expectations of cooperation be afforded nonmandatory hearings before its tribunals?"
The low power operation issue raises a question of law and interpretation of Commission pronouncements which should be definitively answered by the Commission itself.
8 Indeed, by analogy, it is arguable that at 5% power Seabrook should be required to have an EPZ of much less than 10 miles in radius under 10 CFR 5 50.47(c)(2) as such operation will involve power levels of less than 250 MW(t).
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s' CONCLUSION The Petition should be granted.
By their attorneys, l
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TholiiTs pignan, Jr.
George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 1
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January 25, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, EI AL.
)
50-444-OL-1
)
(Seabrook Station, Units 1
)
(Onsite Emergency and 2)
)
Planning and Safety
)
Issues)
)
APPLICANTS' ANSWER TO "CONTENTION OF ATTORNEY GENERAL JAMES M. SHANNON ON NOTIFICATION SYSTEM FOR MASSACHUSETTS AND MOTION TO ADNIT LATE-FILED CONTENTION AND REOPEN THE RECORD" l
l Thomas G.
Dignan, Jr.
George H. Lewald Kathryn A.
Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Acolicants ATTACHMENT "A"
s' TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF PRIOR PROCEEDINGS AND FACTS 1
l ARGUMENT 5
A.
The Commonwealth Should be Precluded From Seeking the Relief It Does by the Doctrines of Estoppel and/or Waiver.
5 B.
The Criteria for Reopening Are Not Met 9
CONCLUSION.
12 11
i 1
TABLE OF AUTHORITIES Cases Pennsylvania v. New Jersev, 426 U.S. 660 (1976) 7 R.
H.
Stearns Co. v. United States, 291 U.S.
54 (1934) 7, 9
Armed Forces Radiobioloav Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150 (1982) 7 Armed Forces Radiobiolocv Research Institutt (Cobalt-60 Storage Facility), LBP-82-24, 15 NRC 652 (1982) 7 1
Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant, Units 1 - 4), ALAB-52 6, 2
9 NRC 122 (1979)
Kansas Gas & Electric ConDany (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53 (1984) 7 Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC l
1076 (1983) 8 Louisiana Egypr and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321 (1983) 10 Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087 (1984) 10 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 10 18 NRC 1340 (1983)
Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287 (1979) 2 Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179 (1978) 7 iii w
f The Toledo Edison Company (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752 (1975) 7 Union Electric Comoany (Calloway Plant, Unit 1),
ALAB-750, 18 NRC 1205 (1983) 11 Reculations 10 CFR $ 2.714 (a) (1) (i) 9 9,
10 10 CFR 5 2.734 10 CFR $ 2.734(a) 9 10 CFR 5 2.734(d) 9 10 CFR S 50.47 (c) (2) 3 c g. 55402 (Aug. 19, 1980) 6 45 Fed.
e 3
47 Fed. Reg. 30232 (July 13, 1982) 51 Fed. Reg. 19535 (May 30, 1986) 8, 10, 11 Statutes Massachusetts Civil Defense Act, Mass Acts 1950, c. 639, as amended by Mass. Acts 1979, c. 796, Ann. L.
Mass., Spec.
L. c. 31, 152, 2B, 17 5
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL-1 OF NEW RAMPSHIRE, EI AL.
)
50-444-OL-1
)
(Seabrook Station, Units 1
)
(Onsite Emergency and 2)
)
Planning and Safety
)
Issues)
)
APPLICANTS' ANSWER TO "CONTENTION OF ATIORNEY GENERAL JAMES M. SHANNON ON NOTIFICATION SYSTEM FOR MASSACHUSETFS AND MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD" STATEMENT OF PRIOR PROCEEDINGS AND FACTS Under date of January 7, 1988, the Attorney General for The Comnonwealth of Massachusetts (Mass AG) filed a nine page document (with attachments) entitled: "Contention of Attorney General James M. Shannon on Notification System for i
Massachusetts and Motion to Admit Late-Filed Contention and Reopen the Record"
("The Motion").
The thrust of The Motion is to have the previously closed evidentiary record with respect to the so-called "on-site emergency planning and l
safety issues" reopened in order to litigate a contention to IIn point of fact the evidentiary record in the "onsite" phase of the case is now reopened for the limited purpose of resolving two other discrete safety issues (steam generator tube inspection program; biofouling).
However, this reopening is not general in nature and does not confer upon
f the effect that there is now no means, in the event of an l
emergency, to provide early notification and clear instruction to the municipalities located within that portion of the "10-mile radius" plume emergency planning zone (EPZ) for Seabrook Nuclear Power Station (Seabrook) located within The Commonwealth of Massachusetts.2 In addition, The Motion, without specifically asking for a ruling to that effect, suggests (at p. 9) an operating license for operation not in excess of 5% of rated power should not issue until the Applicants have demonstrated the means to provide early notification and clear instruction to the populace of (the Massachusetts portion of the EPZ) in the event of a radiological emergency."
Mass AG correctly fails to ask for such a ruling at this time because such a ruling would be premature.
Only if, as, and when the record reopens on the issue of early notification of the Massachusetts population 3
would it be in order for the cognizant adjudicatory tribunal to address whether the pendency of such a proceeding any adjudicatory board the jurisdiction to hold evidentiary hearings on the issues sought to be put to litigation by The Motion. Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant, Units 1 - 4), ALAB-526, 9 NRC 122, 124 (1979);
Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979).
Thus, Mass AG must i
independently establish his right to a reopening with respect to the issues at bar.
2The actual words of the contention are net forth in The Motion at page 7 thereof.
3 Presumably the Licensing Board unless this Appeal Board should elect to conduct the evidentiary proceeding itself.
2
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precludes low power operation of Seabrook.4 In order to put the issue facing this Appeal Board in i
proper perspective, a fuller than usual exposition of history is appropriate.
As of the time the evidentiary record in the onsite phase of this proceeding closed, October 3, 1986, II.
1026, there was neither admitted, nor pressed,5 any contention with respect to the early notification system for Seabrook.
This is not surprising because there had been designed, and was being implemented, a perfectly adequate system.
After the evidentiary record was closed, two late-filed contentions were brought by Mass AG and Seacoast Anti-
)
Pollution League (SAPL), respectively, concerning certain discrete portions of the early notification system; both contentions were rejected and that rejection has been 4It is by no means a foregone conclusion that ongoing litigation of the issue of prompt notification of the Massachusetts portion of the EPZ would foreclose low power operation.
The regulations themselves, 10 CFR S 50.47 (c) (2),
as well as certain regulatory history, see 47 Fed. Reg. 30232, 30233 (July 13, 1982), recognize that prompt notification capability to a full 10-mile radius may not be necessary during low power operation.
In any event, this is an issue to be decided at a later date after full briefing and argument thereon.
Son April 20, 1982 Mass AG filed a contention which menticned "prompt notification" in its statement of basis; it was rejected with leave to file at a later date.
On June 23, 1983, Mass AG filed another siren contention; it was admitted in reworded form in 1983; it was mooted by the filing of the New Hampshire RERP in 1985 and the subsequent order of the Board requiring the refiling of all contentions and any new contentions regarding emergency planning.
Thereafter, Mass AG never filed any early notification system contention.
3
C affirmed by this Appeal Board.6 During the time that the efforts to reopen with respect to the discrete portions of the early warning system were ongoing, and since their rejection, The Commonwealth of Massachusetts (see Attachments 1, 1A & IB to this Brief), its agencies (see Attachment 2 to this brief) and its political subdivisions (see Attachment 3 to this Brief), aided by Mass AG (see Attachments 4 & 4A to this brief), have systematically set out to destroy the in-place fully adequate early notification system.
These efforts have met with complete success and have been undertaken by The Commonwealth, its political subdivisions, its agencies and its chief law enforcement officer despite the existence of the following law of The Commonwealth:
"There is hereby created within the executive branch of the commonwealth a division of civil defense to be known an the ' civil defense agency,' which shall be under the direction of a director of civil defense hereinafter called the
' director'.
"The director shall designate certain I
areas of the c>mmonwealth as ' nuclear power plant areas'.
For purposes of this section, said areas shall consist of all communities located within a ten mile radius of a nuclear power plant, whether or not said power olant is located within the commonwealth.
"The director shall annually publish anu release to local officials of each 6ALAB-879, passim.
4
C political subdivision within areas preparedness and response plans which will permit the residents of such areas to evacuate or take other protective actions in the event of a nuclear accident.
Copies of such plans shall be made available to the public upon request for a fee which is not to exceed the cost of reproduction.
"The director shall also annually publish and release through local officials to the residents of the said areas emergency public information.
Such information shall include warnina and alertina orovision, evacuation routes, reception areas, and other r'acommended actions for (emphases supplied).7 each area.
Having successfully destroyed the siren system (which was in place and operable), The Commonwealth now comes to this Board seeking to employ its self-created state of affairs to gain a further hearing and consequent delay in the licensing proceeding now pending.
ARGUMENT A. The Commonwealth Should be Precluded From Seeking the Relief It Does by the Doctrines of Estoppel and/or Waiver The argument immediately hereinafter set forth is, admittedly, a novel one in NRC jurisprudence.
The essential issue being put before this Appeal Board is whether, when a party to an NRC proceeding purposefully disables a nuclear 7 Massachusetts Civil Defense Act, Mass Acts 1950, c.
639, as amended by Mass. Acts 1979, c. 796, Ann. L. Mass.,
Spec.
L. c. 31, $52, 2B.
This same statute also provides that: "No organization for civil defense established under the authority of this act shall participate in any form of political activity, nor shall it be employed directly or indirectly for political purposes."
Id., 517.
5
C power plant system, should that party then be afforded further discretionary hearing rights (to which it has no absolute entitlement) because its own acts against the facility have created a regulatory deficiency.
What the Commonwealth, its agencies, and political subdivisions have done to Seabrook is indistinguishable from the action of a private individual who somehow gains access to a nuclear power plant and deliberately renders a safety system inoperative.
Should such an individual then have the benefit of a reopened hearing bestowed upon him to reward him for his acts?
Indeed, if one accepts the argument that the language of the Massachusetts civil Defense Act places an affirmative duty upon The Commonwealth to engage in productive emergency planning for Seabrook, which, we respectfully suhmit, it does, the issue then becomes: "Should a State Government which disables a warning system in violation of its own State laws, (as well as in contravention of the reasonable expectations of this Commission),8 be rewarded with further hearing opportunities before this federal agency?"
The principle upon which this argument is made, is, in the words of Mr. Justice Cardozo, writing for a unanimous Supreme Court:
fundamental and unquestioned.
'He who prevents a thing from being done may not avail himself of the non-performance which he has himself occasioned, for the 8 See, 3.g.,
Emergency Plans, 45 Fed. Reg. 55402, 55404 (Aug. 19, 1980).
6
law says to him in effect "this is your own act, and therefore you are not damnified."'
(citations).
Sometimes the resulting disability has been characterized as an estoppel, sometimes as a waiver.
The label counts for little.
Enough for present purposes that the disability has its roots in a principle more nearly ultimate than either waiver or estoppel, the principle that no one shall be permitted to found any claim upon his own inequity or take advantage of his own wrong. (citation).
A suit may not be built on an omission induced by him who sues. (citations)."9 The doctrine of estoppel is hardly foreign to NRC practice.10 And, we submit, what is presented at bar is a 9 R.
H.
Stearns Co. v. United States, 291 U.S.
54, 61-62 (1934).
Also of note are the words of the Supreme Court in a par curiam opinion refusing the exercise of its original jurisdiction in an interstate tax dispute:
"In neither of the suits at bar has the defendant State inflicted any injury upon the plaintiff States through the imposition of the taxes held.
to be unconstitutional.
The iniuries to the claintiffs' fiscs were self-inflicted.
resultina from decisions by their respective state leaislatures.
Hg State can be heard to comolain about damace inflicted by its own hand."
Pennsylvania v. New Jersey, 426 U.S.
660, 664 (1976).
10 ee Armed Forces Radiobioloav Research Institute S
(Cobalt-60 Storage Facility), LBP-82-24, 15 NRC 652, 658, reversed on other arounds, ALAB-682, 16 NRC 150 (1982)
(estoppel held to preclude finding of. untimeliness when putative intervanor was relying on Staff advice as to deadline for filing petition); The Toledo Edison Company (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 766-68 (1975) (having accepted benefits of stipulation, one is estopped from challenging it); Kansas Gas & Electric C2 meany (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53 (1984) (same).
See also Public Service Comoany of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), A LAB-4 59, 7 NRC 179, 196 (1978).
7
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case that cries for its application.
In considering this argument, it is important to note what is not involved here.
First of all, if the Appeal Board denies the reopening, this does not mean that there will be no appropriate early warning system in place.
The Staff will have to pass upon the appropriateness of any early warning system which Applicants devise to replace the lost sirens.
And it has been recognized that since notification systems can be objectively judged under objective criteria there is no bar to leaving the issue of whether an early warning system satisfies the Regulations to Staff oversight.ll Second, The Commonwealth is not here seeking a run of the mill hearing to which it is entitled as of right.
It is seeking to reopen a closed evidentiary record to raise an issue never therein adjudicated.
The Commission itself has characterized the action of reopening a closed record as "extraordinary.n12 Is it good law or policy to grant extraordinary relief, to the detriment of another, to one whose own deliberate actions created the necessity even to consider the question?
Third, this is not a case where the Applicants were seeking to go forward with some aspect of the plant in the face of opposition and failed.
This is a situation where the 11 Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1104-05 (1983).
12Criterin for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19535, 19538 (May 30, 1986),
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siren system was in place, serving a public function, and was deliberately disabled by The Commonwealth.
Is the reward for such action to be further hearings before an adjudicatory tribunal of this agency?
Finally, as noted above, we are not arguing at this time for the proposition that The Commonwealth's action should be deemed to result in Seabrook operating without an adequate early warning system in place for the Massachusetts portion of the EPZ.
Rather, the proposition being advanced is simply that the Commonwealth, and those in league with it in the effort to destroy the siren system, should not be afforded the reward of an adjudicatory hearing on the system finally devised.
"A suit may not be built on an omission induced by him who sues."13 B.
The Criteria for Reopening Are Not Met The criteria for granting a motion to reopen a closed evidentiary record are set forth in 10 CFR 5 2.734.
The required showing is that the motion be timely, address a sionificant safety issue, and "demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially."
10 CFR I 2.734(a).
In addition, where, as here, the reopening is for the purpose of raising a late filed contention, the motion "must also satisfy the requirements for nontimely contentions in i 2.714 (a) (1) (i) through (v)."
10 CFR I 13R.
H.
Stearns Co. v. United States, supra, at 62.
9
2.734(d).
The burden of satirfying each of the criteria is upon the moving party, and it is, indeed, a heavy one.14 Assuming, arouendo, that The Motion should be deemed timely filed, this still leaves the question of whether a significant safety issue is involved and whether a different result is likely.
Turning to the last point first:
When the Commission codified the rule with respect to reopening closed evidentiary records, 10 CFR 5 2.734, it paid particular attention to the "materially different result" criterion codified in subparagraph (3) of subsection (a) of the rule.
The Commission noted that theretofore there had been articulated in the case law two differently worded standards: the so-called "might have been reached" standard and the "would have been reached" standard.15 The Commission l
went on to say:
"The actual inquiry to be performed falls between the two standards. The 'would' l
l standard may be read to imply that an l
ultimate conclusion must be reached I
before all evidence is considered.
The
'might' standard implies that reopening could be ordered even where a board is uncertain whether or not the new evidence is important.
The inquiry should be, and has been, the likelihood that a different result will be reached if the information l
14E.g., Louisiana Pover and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-7 8 6, 20 NRC 1087, 1090 (1984); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1344 (1983); Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1324 (1983).
15 Criteria for Reopening Records in Formal Licensing Proceedings, supra, at 19536-37.
10
is considered. Egg 3.g., Union Electric spneany (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1209 (1983).
Accordingly, the Commission is modifying the standard of 5 2.734 (a) (3) to require that a materially different result would be or would have been likelv had the newly proff9 ped evidence been considered initially."I' Because this is an operating license case, there is, in a sense, a logical disconnection between the regulation and the procedure involved.
Like all operating License Licensing Boards, the Board which issued the initial decision below was confined in its jurisdiction to the contentions before it.
Thus, even if the information which forms the gravamen of The Motion were available to the Licensing Board, the "result" I
(1 3.,
the rulings on the contentions before it) would not have changed.
Therefore, the question now becomes one of deciding how the "materially different result" criteria is to be handled in operating license cases where the new information does not affect the resolution of any contention heard by the Licensing Board, but rather allegedly gives rise to a wholly new and disparate contention never litigated.
In this particular case, the seemingly sensible course is to withhold ruling on the motion to reopen until a new warning system has been proposed and late filed contentions are made.
Then a logical assessment can be made at to whether it is likely that a materially different result, i
1 3.,
nonlicensure, "would be likely."
It was for this i
1614. at 19537.
11 1
.. e reason that the Applicants sought to await the design of the new system before responding to the motion at bar.
Similarly, awaiting such a course of events permits a realistic assessment of the significance of the safety issue
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involved.17 Mass AG, in The Motion, sacks to: satisfy the "materially different result" criterion in a wo sentence footnote.18 The footnote wholly ignores the ') logical disconnection" referred to above and makes no Attempt at this juncture to argue that no aatAsfactory substitute is
~
s possible.
Similarly, the brief "significance" discussion in a
s' The Motion is predicated solely on lack of informatio,n)* In S
short, very little has been done by Mass AG to sayishy his heavy burden.
s CONCLUSION s
s The motion to reopen shoulo be denied orr the basis of x
estoppel for the reasons set forth in part A of the argument above.
If the Appeal Board rejecte this argument, it should withhold any ruling as to the reopening of the record until sucn time as a substitute early warning system has been 3
17Early warning systems are hardly exercises in esoteric or unknown technologies.
At present, Applicants are at work on a syctem for the Massachusetts portion of the EPZ which would employ proven siren technology and helicopters to cover areas which could not be reached by the sirens, which helicopters would be backed up by mobil ground-based sirens.
None of this involves cutting edge technology, and, as noted earlier, the standards by which it will be judged are entirely objective.
Such matters hardly ever give rise to '
"significant" safety issues.
18The Motion at 7 n.8.
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D
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r devised and submitted, and contentions, if any, are late-s filed with despect to it.19 t'
s Respectfully submitted,
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43 s
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31 3 ij. ' \\
Thomas G.
Dignan, Jr.
V George H.
Lewald
^
wb Kathryn A. Selleck Ropes & Gray s
s 225 Franklin Street Boston, MA 02110 i-4 (617) 423-6100 t
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Counsel for Aeolicant.g p
x
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l s
19As noted earlier, the present state of affairs, as it affects low power operation, is a subject for later resolution by the cognizant tribunal.
In the event the Licensing Board should authorize low power operation prior to resolution of the various issues now pending before it, the Commonwealth will have at least ten days to bring to the attention ol'this_ Board the question of whether low power operation must be forbidden pending design and implementation of a substitute early warning system.
n 13-
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4 c
DOCKEIED uwe CERTIFICATE OF SERVICE
'88 8 M P3 :29 I, Thomas G.
Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on Februa 18, 1988, I made service of the within document by mailing 300ChfyIk'[iEh'icf.
thereof, postage prepaid, to:
4 Lando W.
Zech, Jr., Chairman Thomas M.
Roberts Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Kenneth M.
Carr Frederick M.
Bernthal Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Kenneth C.
Rogers Nuclear Regulatory Commission Washington, DC 20555 Alan S.
Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Thomas S.
Moore Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S. Nuclear Regulatory Office and Court House Commission Post Office Square Washington, DC 20555 Boston, MA 02109 Administrative Judge Sheldon J.
Robert Carrigg, Chairman Wolfe, Esquire, Chairman Board of Selectmen Atomic Safety and Licensing Town Office Board Panel Atlantic Avenue U.S.
Nuclear Regulatory North Hampton, NH 03862 Commission Washington, DC 20555 Judge Emmeth A.
Luebke Diane Curran, Esquire Atomic Safety and Licensing Andrea C.
Ferster, Esquire Board Panel Harmon & Weiss 550 Friendship Boulevard Suite 430 Apartment 1923N 2001 S Street, N.W.
Chevy Chase, MD 20815 Washington, DC 20009
?
Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S.
Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Sherwin E.
Turk, 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 Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J.
P.
Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avonue General P.O.
Box 360 One Ashburton Place, 19th Flr.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manger RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street 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, Mi.
01950 Senator Gordon J. Humphrey Mr. Peter S.
Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 l*
8 J,
Mr. Thomas F.
Powers,-III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Judith H. Mizner, Esquire Charles P. Graham, Esquire Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main street 88 Broad Street Amesbury, MA 01913 Soston, MA 02110
,-cp' thr;Tiras A nan, Jr.
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