ML20154Q470

Applicant Response to New England Coalition on Nuclear Pollution Petition for Review of ALAB-899.* Petition Should Be Denied.Certificate of Svc Encl

ML20154Q470
Person / Time
Site:	Seabrook
Issue date:	09/29/1988
From:	Steenland D PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
References
CON-#488-7183 ALAB-899, OL-1, NUDOCS 8810030408
Download: ML20154Q470 (8)

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7163 DOCKETED UWC UNITED STATES OF AMERICA TE EP 29 P2 47 UNITED STATES NUCLEAR REGULATORY COMMISSION Of54- - '

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NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL-1 NE*d 4MPSHIRE, et al. ) 50-444-OL-1

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(Seabrook Station, Units 1 ) (On-site Emergency and 2) ) Planning Issues)

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APPLICANTS' RESPONSE TO NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S PETITION FOR REVIEW OF ALAB-899 Pursuant to 10 C.F.R. 52.786(b) (3) , Applicants herein respond to New England Coalition on Nuclear Pollution's Petition for Review of ALAB-8991 ("NECNP Petition").

A. Sumtu3Lof ALAB-899 The Appeal Board, in ALAB-899, finally disposed of the issue of-whether NECNP Contention IV, entitled "Blockage of Coolant Flow to Safety-Related Systems and Components by Buildings of Biological Organists" embraced the issue of microbiological 13-induced corrosion ("MIC"). Consistent with 1 Public Service Comoany of New Haneshire (Seabrook Station, Units 1 and 2) ALAB-899 NRC (1988).

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the rulings of the Licensing Board,2 the Appeal Board held that the issue of MIC was outside the scope of NECNP Contention IV.3 B. Why NECNP's Petition Should Be Denied Commission review of an Appeal Board decision is granted only in the limited instances set out in 10 C.F.R. 52.786 (b) (4) . Unless the petition raises important matters of public policy or demonstrates that the Appeal Board committed clear legal error, the petition should be denied.

In this case, NECNP argues that the Appeal Board "committed fundamental legal error with respect to the application of the Commission's standards for the admissibility of contentions." NECNP Petition at 10. On the contrary, there is no question that the Appeal Board applied the correct legal standard in determining that the issue of MIC was not within the scope of NECNP Contention IV. After noting that the purpose of the requirement that the bases of a contention he set forth with reasenable specificity is to 2 MEMORANDUM AND ORDER (Granting NECNP's Motion for Leave; Denying NECNP's Motion to Compel) (unpublished)

(Feb. 17, 1988); MEMORANDUM AND ORDER (Denying NECNP Motion for Reconsideration; Denying NECNP's Request for Entry upon land; Granting NECNP's Motion for Leave to file a RCply; Directing $2.749 filings) (March 18, 1988); ORDER (Denying NECNP's Motion to Compel of March 27, 1988) (April 1, 1988).

3 For a detailed review of the evolution of the issue presented in ALAB-899, see Applicant 3' Brief filed with the Appeal Board (July 27, 1988).

1 put the other parties on notice as to what issues they will have to defend against or oppose,4 the Appeal Board, looking at Contention IV end its stated basus, held "(ijn this case, therefore, a fair reading of (h2CNP's) Contention IV and its stated basis compels us to conclude that that contention was intended to embrace only cooling system blockage." ALAB-899 at 7, citing Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, 20-25, reconsideration denied, ALAB-876, 26 NRC 277 (1987);

Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 270, 229-33 (1986); Philadelchia Electric Co. (Limerick Generating Station, Units 1 and 2),

ALAB-819, 22 NRC 681, 709 (1985) aff'd in Dart and review otherwiso denied, CLI-86-5, 23 NRC 125 (1986) ; ALAB-216, supra.5 NECNP's real gripe is not with the standard applied by the Appeal Board, but with the outcomo of the Appeal Board's analysis. Neither the Licensing Board nor the Appeal Board 4 ALAB-899 at 6 citing 10 C.F.R. 52.714(b) and Philadelphia Electric Co s (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20, modified on other grounds, CLI-74-32, 8 AEC 217 (1974).

5 While NECNP argues in its brief that "[t]ha scope of the contention is determined by the language of the 4

contention itself, and not by the contention's title," NECNP Petition at 5, it is obvious that the Appeal Board based its ruling on the language of the contention and its basis and did not rely solely on the contention's title.

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apparently found that analysis to be particularly challenging, however, as the rulings on this matter have variously stated: "it is clear to this (Licensing) Board from a reading of the contention that it is limited to asserting concerns that Applicants must establish a surveillance and maintenanca program for the prevention of the accumulation of mollusks, other aquatic organisms, and debris in Seabrook's cooling systems in order to satisfy certain General Design Criterian6; "(NECNP'E] instant motion (for reconsideration) has no merit whatsoever"7: and "the divergent path (NECNP) chose to follow instead was doomed to 4

certain failure from the very outset.n8 NECNP also argues that the Appeal Board committed error by failing to reach other issues raise in NECNP's appeal.

This argument is without any merit because the vitality of the other issues raised is contingent upon the determination of whether or not MIC is within the scope of Contention IV.

Hav ng determined that Contention IV does not include MIC, it was unnecessary for the Appeal Board to resolve any other j issue. ,

6 MEMORANDUM AND ORDER (February 27, 1988) at 5 ElpIn (emphasis in original).

7 MEMORANDUM AND ORDER (March 18, 1988) at 3 supra.

8 ALAB-899 at 11.

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Finally, NECNP argues that the Commission should review ALAB-899 because it raises significant safety issues in that there has been an occurrence of MIC in the cooling systems.

NECNP Petition at 10. Yet, as noted by the Appeal Board,

"[t]his disposition of (NECNP's) appeal does not, of course, relieve the staff of its obligation to ensure the adequacy of the applicants' program for detecting and controlling microbiologically-induced corrosion. Stated otherwise, the admission or rejection of a particular contention advanced by an intervenor (or petitioner for intervention) has no bearing upon the nature and extent of staff's responsibilities in the fulfillment of 1es general regulatory function." ALAB-899 at n.18. Therefore, no significant safety issue is raised by NECNP's petition.

Conclusion For the foregoing reasons, NECNP's petition should be denied.

Respectfully submitted, Thomas G. Dignan, Jr.

Deborah S. Steenland Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 counsel for Applicants

C H. ii.0 th4H CERTIFICATE OF C'RVICE 18 SU) 29 P2 47 I, Deborah H. .ieenland, one of the attorneys for the -

Applicants herein, hereby certify that on September 022p 1988, . -

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I made service of the within document by mailing copiWhDg[;[',,

thereof, postage prepaid, to:

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 Nashington, 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. Richard R. Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.

Washington, DC 20555 Bothell, WA 98021-7796 Administrative Judge Sheldon J. Robert Carrigg, Chairman Wolfe, Esquire, Chairmsn Board of Selectmen Atomic Safety and Licensing Town Office Board Panel Atlantic Avenue U.S. Nuclear Regulatory North Hampton, NH 03862 Commission Washington, DC 70555 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

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Dr. Jerry Harbour Stephen E. Merrill, Esquire i Atomic Safety and LicenLing Attorney General i 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 Adjudicatory File Sherwin E. Turk, Esquire 1 Atomic Safety and Licensing Office of the Executive Legal Board Panel Docket (2 copies) Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Com'ission Washington, DC 20555 Washitigton, 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, M2 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire ,

Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O. Box 360 One Ashburton Place, 19th Fir. "

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 R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attnt Tom Burack) 79 State Street 01950 Newburyport, MA Senator Gordon J. Humphrey Mr. Peter S. Matthews ,

One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attnt Herb Boynton) Newburyport, MA 01950 i

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Mr. Thomas F. Powers, III Mr. William S. Lord I Town Manager Board of Selectmen  !

Town of Exeter Town Hall - Friend Street j 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 - '

l 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. 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 79 State Street, 2nd Floor Nawburyport, MA 01950 t M Deborah S. Steenland 4

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