ML20154J470

Applicant Answer to Joint Intervenor Application for Stay of Order Authorizing Issuance of Low Power License.* Application Should Be Denied.Certificate of Svc Encl

ML20154J470
Person / Time
Site:	Seabrook
Issue date:	09/19/1988
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
References
CON-#388-7107 OL-1, NUDOCS 8809230035
Download: ML20154J470 (10)

Text

. _ _ _ _ _ _ _ _ _ _ _ - - - - - - -

• 1Io 7 i -

s 00CKEMD SeptdEh5'r 19, 1988 UNITED STATES OF AMERICA

.E3 SEP 20 P4 :01 before the

,i.

NUCLEAR REGULATORY COMMISSION' C - s

)

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 Energency and 2) ) Planning and Safety

) Issues)

)

APPLICANTS' ANSWER TO JOINT INTERVENORS' APPLICATION FOR STAY OF ORDER AUTHORIZING ISSUANCE OF IDW-POWER LICENSE INTRODUCTION Under date of Septcaber 6, 1988, the Attorney General of the Commonwealth of Massachusetts has filed a document entltledt Joint Intervenors' Application for Stay of Order Authorizing Issuance of Low Power License. The length of stay requested is 10 days after the issuance of any future order authorizing low-power operation. It is stated that:

"The purpose of such a stay would be to give the Mass AG and other intervenors the opportunity to file timely and full stayapplicationspursuanttogoC.F.R.

2.788 and Fed. R. App. P. 18."

I For the reasons stated below, the notion should be denied.

1 App 1Lcation at 1.

8009230035 00o919 goa Apocnosooga

[

C~

~ . i b

. L ARGUMENT i

I. The Imgal standard to be Applied '

t The Application seeks n stay pending judicial review.

Under Commission precedents

(

"The standards the Commission applies to .

t stay motions are the same as those set torth in Virginia Petroleum Jobbers  !

Association v. Tederal Power Consission, 259 F.2d 921 (D.C. Cir. 1958) and Washington Metropolitan Area Transit Coma *n v. Holiday Tou 841 (D.C. Cir. 19 7 7) . "$s, Inc. , 559 F. 2d i

Further the Commiosion described the standards as follows:  !

t "They are has the petitioner made a {

strong showing that it is likely to preva:,1 on the merits of its claims whether absent a stay it will be irreparably injured; whether the granting [

t ofastaywillharmotherparticipangst and where lies the public interest."

i l

These standards are essentially the same standards as are to be applied in cases of stays pending appeal within the agency i itself.4 As seen below, these standards have hardly been met.

l l

i I

2Westin (Exports to the Philippines)ghouse riectric CLI-80-14, corp.631, 11 NRC 662 (1980).

3Zd.

4 10 CFR 52.788. ,

f I

2 .

t i

i

II. The Standards for a Stay Have not Been Met t

A. Likelihood of Prevailing on the Merits Mass AG has identified four arguments that he wishes to make to the Court of Appoals for reversal of any order allowing low power testing.5 The first argument is:

"the recent proposed rule change on public notification systems, 133 53 Fed.

Reg. 16435 (May 9, 1988), if adopted as a final rule is arbitrary, capricious and not in &ccordance with laws" For all of the reasons set forth in the Commission's decision with respect to the sirens rulemaking, this argument is totally without merit.6 The second ground alleged is:

"the Commission's denial, if that occurs, of the Mass AG and other intervenors' petitions for waiver of the financial qualifications rule would be arbitrary, capricious and not in acccirdance with laws" As of this writing, no such decision has been made. More importantly, a decision to adhere to a regulation which has f

already survived judicial scrutiny can hardly qualify as 5 Application at 3.

6 To the extent that the instant filing can be viewed as a motion to stay the effectiveness of & rule pending judicial l challenge, the same standards apply to such an application as apply to an adjudicatory matter. Fire Protection for I Operating Nuclear Power Plants (10 CFR $ 50.48), CLI-81~11, 13 NRC 778, 784 (1981)I Uranium Mill Licensing Requirements '

910 CFR Parts 30, 40, 70 and 150), CLI-81-9, 13 NRC 460, 463

[

(9181)I Environmental Radiation Protection Standards for c Nuclear Power Operations (40 CFR 190), CLI-81-4, 13 NRC 298, 301 (1981).

3  !

?

I

I 6

arbitrary and capricious. Indeed, it is questionable whether the decision of an agency not to suspend a rule can even be judicially reviewed.7 The third alleged ground is:

"the issuance of a low power license prior to hearings on all emergency planning and safety issues violates the Atomic Energy Act, 42 U.S.C. I 2201 11 l

112.,"

This argument has been previously rejected by the l

commission.8 The final ground is that:

"a separate or supplemental environmental impact statement under the National; Environmental Policy Act, 42 U.S.C. I 4321 at gag., is required for a low-power license in this case."

This argument has been rejected by both this Commission and the Courts.9 In short there has been no strong showing of a likelihood of success on the merits. The most that has been shown is that there are possible grounds for appeal and that is not enough.10 B. Irreparable Hara "The most significant factor in deciding whether to 7

Massachusetts Public Interest Research Groupo Inc. V.

NRC, F.2d , No. 87-1865, (1st Cir. July 15, 1988).

8 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC 1437, 1440 and n.6 (1984) 9 CLI-85-12, supra, n.7 at 15891 Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-84-9, 24 NRC 1323, at 1326 (1984); Cuomo v. NRC, 772 F.2d 972, 974-75 (D.C. Cir. 1985).

10 Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC 795, 797 (1981).

4

1

. I j grant a stay request is 'whether the party requesting a stay  !

! has shown that it will be irreparably injured unless a stay 1

is granted.'rll The Application makes no attempt to address this factor. Thus it is impossible to state with certainty what arguments are contemplated. However, in a careful opinion, the Appeal Board has once considered a series of arguments with respect to this factor made by the Mass AG and rejected them all, pointing out that all except one had previously been rejected by the Commission in the Shoreham proceeding, and holding that the remaining one was basically economic and therefore in no sense irreparable.12 In addition, the usual litany recited with respect to this area has also a' ten rejected by the Courts.13 C. Kara to others Issuance of any stay will further delay low power testing of Sgabrook Station. This Commission has long recognised the very real benefit of early low power testing as being a benefit which must be considered in ruling upon l low power license stay applications.14 1

11 Metropolitan Edison Co. (Three Mi)e Island Nuclear i Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984), quoting Westinghouse Electric Corp. (Exports to the Philippines),

j CLI-80-14, 11 HRC 631, 662 (1980).

12Public service company of New Hampshire (Seabrook Station, Units 1 and 2), A LA B-8 6 5, 25 NRC 430, 436-38 (1987).

13 Cuomo v. NRC, 772 F.2d 972, 976-77 (1985).

14 Long Island Lighting company (Shoreham Nuclear Power Station), 21 NRC 1587, 1590 (1985).

5

\-

D. Where Llos the Public Interest?

The Application does not addrass this factor either. If the argument is that irradiation of the plant is against the l public ir.terest because a full power license may not issue, this argument has been considered and found by both this Commission and the Courts not to tip the public interest factor.15 t

III. If the Theon is That a Stay Should be Granted Simply to Allow Preparation of a Proper Stay Motion, the Application Still Should be Denied in the Circumstances of this Case.

Although not actually recognised in the rules of t practice, there is undoubtedly power inherent in the Commission to grant some time to a party to seek a stay from the courts in an orderly fashion. This should not be done l here. The issues to be roccived prior to the authorization l I

of low power tanti,ng are well known. There has been more than ample tina fcr tle Mass AG to prepare the substance of a stay motion for filing with the Court of Appeals. To grant more time is not in any legitimate interest.

15 See Long Island Lighting Co. (Shoreham Nuclear power Station), CLI-85-12, 21 NRC 1587, 1590 (1985) Cuomo v. NRC, 772 F.2d 972, 978 (D.C. Cir. 1985).

6

b CONCwSION The Application should be denied.

Respectfully submitted, M75W Thomas"G. Dignan, Jr.

George H. Lewald Xathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 counsel for Annlicants 7

0

'.i'i CERTIFICATE OF SERVICE 4 I, Thomas G. Dignan, Jr. , one of the attorneys ,fprMq Applicants herein, hereby certify that on September 44,W960, P4 :01 I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery,Jo.(or where indicated, by depositing in the United Statestzail,. 1 first class, postage paid, addressed to):

F3 Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel 4

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Thomas S. Moore Mr. Richard R. Donovan

, Atomic Safety and Licensing Federal Emergency Management l Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center

Commission 130 228th Street, S.W.

) East West Towers Building Bothell, WA 98021-9796 4350 East West Highway Bethesda, MD 20814

! Administrative Judge Sheldon J. Robert Carriqq, Chairman

)

Wolfe, Es qu ire , Chairman Board of Selectmen Atemic Safety and Licensing Town office Beard Panel Atlantic Avenue U.S. Nuclear Regulatory North Hampton, NH 03862 Commission

, East West Towers Building

) 4350 East West Highway Bethesda, MD 20814 Administrative Judge Emmeth A. Diane Curran, Esquire i

Luebke Andrea C. Ferster, Esquire 4515 Willard Avenue Harmon & Weiss Chevy Chase, MD 20815 Suite 430 1

2001 S Street, N.W.

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 East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814

o Adjudicatory File Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Docket (2 copies) Office of General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.

4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852

• 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 Selectman'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

.9haines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O. Box 360 One Ashburton Place, 19th Fl.

Portsmouth, 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

• Senator 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 S. Matthews One Eagle Square, suite 507 Mayor Concord, NH 03301 City Hall (Attnt Herb Boynton) Newburyn t, MA 01950 Mr. Thomas F. Powers, III Mr. Wil 'am S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833

-2 -

o H. Joseph Flynn, Esquire Charles P. Graham, Esquire office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.

Washington, DC 20472 '

Gary W. Holres, 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 79 State Street, 2nd Floor Newburyport, MA 01950 j Lando W. Zech, Jr. , Chairman Thomas M. Roberts, Commissioner i

U.S. Nuc1 gar Regulatory U.S. Nuclear Regulatory l Commission Commission one White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Kenneth M. Carr, Frederick M. Bernthal, commissioner commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission one White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Kenneth C. Rogers, William C. Parler, Esquire Commissioner General Counsel U.S. Nuclear Regulatory Office of the General Counsel Commission one White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Marjorie Nordlinger, Esquire Deputy General Counsel Office of the General Counsel One White Flint North 11555 Rockville Pike Rockville, MD 20852 -,

/

• fMW ~

Thomas $PDignan, Jr.

(*=U.S. First Class Mail.)

- _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _