ML20151P507
| ML20151P507 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/05/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6877 OL, NUDOCS 8808100054 | |
| Download: ML20151P507 (7) | |
Text
6877 DC(,KETED USNEC 10 ME -8 P2 :36 August 5, 1988 nrc'it'r <
UNITED STATESfiOF. AMERICA bw NUCLEAR R2GULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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Offsite Emergency (Seabrook Station, Units 1 and 2)
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Planning Issues
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APPLICANTS' MOTION FOR REFERRAL Applicants hereby move this Licensing Board to refer to the Appeal Board, pursuant to 10 CFR 52.730(f) and 10 CFR 5 2.7 85 (b) (1), the Licensing Board's rulings in the Board's Memorandum and Order of July 22, 1988 as to the admissibility of Contentions 1, 3,
4, and 6 of the Attorney General for the Ccmmonwealth of Massachusetts ("Mass AG") on the Seabrook Plan for Massachusetts Communities ("SPMC").
10 CFR 52.730(f) provides that "(w] hen, in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, the presiding officer may refer the ruling promptly Referral in this case is to the Commission.
e808100054 880B05 PDR ADOCK 05000443 3
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appropriate as the rulings in question concern "fundamental threshold and legal issues,"
Menorandum and order at 2, which will in large measure govern the course of these proceedings.
Referral of the rulings would also serve the public interest in that it would allow the commission to decide which of two Licensing Board interpretations of the emergency planning rules it wishes to affirm before the record in this litigation closes.
This Board's rulings concern permissible rebuttal to the presumption that state and local officials will follow the utility emergency response plan.
The specific issues encompassed by the rulings Applicants would ar
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(1) that "[the Commission) did not foreclose the possibility that the presumption might be rebutted in some other way" than submission of a state or local plan, Memorandum and Order at 22, and (2) that "[t]he legal-authority issue is an affirmative and permissible rebuttal to the ' follow-the-utility-plan' presumption", idt at 27.
These statements appear to be in direct conflict with the Board's decision in Lona Island Lichtina company (Shoreham Nuclear Power Station, Unit 1), LBP-88-9, 27 NRC (1988).
In Shoreham, the Board made it clear that the "follow the utility plan" presumption may only be rebutted by snowing that another adequate and feasible plan will be relied upon.
As the Board stated:
"We are obligated therefore to view intervenor's obligation, in the context of
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1 this proceeding, as looking to the utility's plan to rely on in an emergency, or,following some other plan that exists."
Id., slip op. at 22.
Moreover, the Shoreham Board specifically rejected lack of legal authority as a means of rebutting the presumption:
Intervenors, however, can no longer raise the spector of a lack of legal authority as a response nor can simple protestations that they will not use LILCO's plan suffice.
The Intervenors are required to come forward with positive statements of their plans and must specify the rescurces that are available~for a projected response and the time factors that are involved in any emergency
@:tivities proposed.
Lacking the presentation of a positive case for analysis and evaluation, a
' finding of default and an adverse ruling could result in connection with the contention to which
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such omissions applied.
Id. at 24-25.
The rulings of this and the Shoreham Board appear to be in conflict.
Applicants fully recognize that this Board has held that the two decisions can be distinguished on the basis of the procedural and factual differences extant in the Shoreham and Seabrook proceedings.
However, it is respectfully submitted that facially the language of the ShorehAE Board can be read as not being dependent upon the procedural and factual context of that case.
Indeed, this Board nots 3 that, if the Shoreham Board's decision is not to be limited to the facts of that case, this Board disagrees with its rulings on these issues. IIz 14345.
The Commission has stated:
"If a significant legal or policy question is presented on which Commission guidance is needed, a _ _
board should promptly refer or certify the mattter to the Atomic Safety and Licensing Appeal Board or the Commission."
Statement of Policy on Conduct of Licensina Proceedinas, CLI-81-8, 13 NRC 452, 456 (1981).
Here, as in Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2), ALAB. 687, 16 NRC 460, 464-65 (1982):
The questions at hand are legal in character and.
have generic implications.
Further, insofar as we can determine, they have not previously been squarely addressed on an appellate level."
The rulings here should be squarely addressed on an appellate level as the issues not only significantly affect the course of this proceeding but also have generic implications.
Conclusion For the above reasons, the rulings of this Board as to the admissibility of Contentions 1, 3,
4, and 6 should be referred as moved above.
By their attorneys,
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Thomas"G4Dignan, Jr.
l George H. Lewald Kathryn A.
Selleck Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 l.
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'88 ME -8 P2 :36 CERTIFICATE OF SERVICE I, Kathryn A. Selleck, one og the attorneys for k.rFr..aW ilid k<m;U:
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Applicants herein, hereby certify.that on August 5, 1988, Tabs made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan'W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger Diane Curran, Esquire Atomic Safety and Licensing Andrea C.
Ferster, Esquire Boari Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.
East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 i
Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of the General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory i
l U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike j
Bethesda, MD 20814 Rockville, MD 20852
- 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 L
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 Shainc.; & McEachern Department of the Attorney 25 Mtplewood Avenue General P.O.
Oox 360 One Ashburton Place, 19th Fir.
Port 3 mouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- fenator Gordon J. Humphrey R.
Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Mr. Peter J. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 Mr. Thomas F.
Powers, III Mr. William S. Lord Board of Selectmen Town Manager Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 i
H. Joseph Flynn, Esquire Office of General Counsel Federal Emergency Management Agency 500 C Street, S.W.
Washington, DC 20472 l
l 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
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i Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I 79 State Street, 2nd Floor 442 John W. McCormack Post Newburyport, MA 01950 Office and Court House Post Office Square Boston, MA 02109 Charles P. Graham, Esquire Leonard Kopelman, Esquire Murphy and Graham Kopelman & Paige, P.C.
33 Low Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02130 Ashod N. Amirian, Esquire 376 Main Street Haverhill, MA 01830 Selleck K4th[ynA.
(*= Ordinary U.S.
First Class Mail) l l
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