ML20198L002
| ML20198L002 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/30/1986 |
| From: | Sneider C MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-382 OL, NUDOCS 8606040186 | |
| Download: ML20198L002 (11) | |
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V UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
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9I b0502"h-ATOMIC SAFETY AND LICENSING APPEAL BOARD
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BEFORE ADMINISTRATIVE JUDGES:
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Alan S.
Rosenthal, Chairman N,
Gary J.
Edles
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Howard A.
Wilber
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In the matter of
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Docket Nos.
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50-443-OL PUBLIC SERVICE COMPANY OF
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50-444-OL NEW HAMPSHIRE, et al.
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(Seabrook Station, Units 1 and 2)
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(Off-Site EP)
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May 30, 1986 RESPONSE OF ATTORNEY GENERAL FRANCIS X.
BELLOTTI TO APPEAL BOARD ORDER DATED MAY 22, 1986 Attorney General Francis X.
Bellotti hereby submits his response to the questions posed to him by the Atomic Safety and Licensing Appeal Board on May 22, 1983 relative to the viability of his appeal from the Licensing Board's order of April 29, 1986, rejecting the Attorney General's sole contention from this proceeding.
1.
Attorney General Bellotti is not a " party" to this operating license proceeding.
However, by Menorandun and Order of the Licensino Board dated September 13, 1982, the Connonwealth of Massachusetts was granted status to participate in this proceeding as an " interested state" pursuant to 10 C.F.R. 5 2.715(c).
See Public Service Co. of New Hampshire
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(Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1077-79 (1982).
See also 10 C.F.R.
S 2.715
(" Participation by a person not a party") (emphasis added).1!
2.
The appeal is not that of the " Commonwealth of Massachusetts" except insofar as the Attorney General has sought intervention in this proceeding in order to represent the interests of the Commonwealth and its citizens.
See Petition to Intervene in Licensing Proceeding of Massachusetts 1
Attorney General, dated November 11, 1981.
The only petition 1
l to intervene filed in this proceeding on behalf of the l
l Commonwealth was filed on November 11, 1981 in the name of the Massachusetts Attorney General.S!
The Commonwealth of 1
Massachusetts has never sought independently of the Attorney General to intervene or otherwise participate in this proceeding.
3.
Neither the Attorney General, not the Commonwealth, has I
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a pending contention in this operating license proceeding on 1
any subject emergency planning or otherwise.
The Attorney i
1/
Attorney General Bellotti has never sought admission to this proceeding as "an interested state."
The Licensing Board granted the " Commonwealth of Massachusetts" such status gratuitously when by memorandum and order dated September 13, 1982, it rejected all four of the original contentions (on emergency planning) filed by the Attorney General in this operating license proceeding, thereby denying Attorney General Bellotti's right to participate as a full party pursuant to 10 C.F.R.
S 2.714.
2/
A supplement to the Attorney General's intervention petition was filed by the Attorney General in 1982, however, under the name of the " Commonwealth of Massachusetts."
(The four contentions submitted in that supplement were rejected.)
2-
o General did have several contentions relative to the State of New Hampshire's emergency response plans admitted to this proceeding in 1983.
See Memorandum and order of Licensing Board, dated September 1,
1983.
However, none of these contentions were ever litigated, and the State of New Hampshire in January, 1986, submitted entirely new off-site emergency response plans to the NRC.
Thus, the Licensing Board, on January 17, 1986, found the old New Hampshire plans, on which our contentions had been admitted, to be "no longer pertinent to these proceedings" and ordered the parties to file new contentions based on the new draft New Hampshire plan.
See Memorandum and Order of Licensing Board, dated January 17, 1986.
Thus, the only contentions of Attorney General Bellotti which have ever been admitted to this licensing proceeding have never been litigated and are no longer before the Daard.
Similarly, the Attorney General did participate in 1983 in the litigation of another party's (MECNP's) contention relative to evacuation time estimates that are also no longer pertinent to this proceeding.2!
Although hearings were held on this contention and proposed findings submitted by all parties, the Licensing Board never issued a decision on this contention and the new draft New Hampshire plan presently before the Board 3/
The Attorney General submitted rebuttal testimoni relative to evacuation time estinates for the New Hampshire beachea in summer months.
3-
l incorporates new evacuation time estimates based on a completely new evacuation time study for the state.S/
Thus the only contention which the Attorney General has ever in any manner litigated in this proceeding has become moot and is no longer pending before the Board.
Although Attorney General Bellotti acknowledges that he i
presumably has the "right" to further participate in this proceeding pursuant to 10 C.F.R.
S 2.715(c) as an " interested state," he has not sought to do so.
The Attorney General has l
to date only one issue which concerns him in this proceeding, l
l which is, the protection of Massachusetts residents on New Hampshire beaches.
l Moreover, the Attorney General maintains that this limited "right" to participate as an interested state -- which at least at this point in the proceedings would be limited solely to his participating on other contentions not sponsored by him and not relevant to the Attorney General's interest -- is in fact not a l
4/
The previously litigated evacuation time estimates were based on a time study prepared for the Applicants by the firm I
Costello, Lomaaney & DiMapoli, Inc. ("the CLD Study"J.
A new i
evacuation time study was prepared for the Commonwealth of l
Massachusetts by the tirm KLD, Associates, Inc. ["the KLD l
Study") and adopted by the State of New Hampshire and recently incorporated into its new draft plans.
Because the KLD study was not yet complete when the State of New Hampshire submitted its draft plans to the NRC in January, the Licensing Board, in its Memorandum and Order of April 29, 1986, rejected "as premature" all contentions filed by the parties relative to evacution time estimates.
- See, e.g.,
Memorandum and Order, dated April 29, 1986, at 4-5.
Attorney General Bellotti, l
however, has not filed any contentions based on this new study..
m right to participate as a full party.
- See, e.g.,
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1)
LBP-82-19, 15 NRC 601, 617 (1982) ("[ Interested governmental agency] may not at this stage, less than two months before the start of the hearing, raise new issues in the case not already embraced within the scope of admitted contentions."); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 1
& 2), LBP-81-5, 13 NRC 226, 247 (1981) ("As a representative of an interested state participating under 10 CFR 2.715(c)
[the Governor] is free to fully participate in the litigation of any contentions which are otherwise accepted by the Board.
(emphasis added).
See also, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plants, Units 1 and 2), LBP-81-35, 14 NRC 682, 688 (1981) ("Ashtabula [ county] shall be admitted as a non-party participant under S 2.715(c)") (emphasis added);
Mississippi Power and Light Co. (Grand Gulf Nuclear Stations, Units 1 and 2), LBP-82-92, 16 NRC 1376, 1381 (1982); and 10 C.F.R. S 2.715
(" Participation by a person not a party")
(emphasis added).
Thus, although the Attorney General has a f
unique governmental interest in this proceeding not adequately represented by another party (the protection of Massachusetts citizens in the New Hampshire EP2) his participation as "an interested state" would be limited only to those issues already raised by other parties.
Yet it is because the issues already raised by the other parties do not adequately represent the 5-
F 4
Attorney General's interest that he has not sought at this point to join in the contentions of those other parties.
Attorney General Bellotti therefore maintains that his right to appeal the dismissal of his sole contention is clearly distinguishable from the situation presented by the appeal of the State of Louist'ana in Gulf States Utility Co. (River Bend Station, Units 1 and 2), ALAB-317, 3 NRC 607 (1976).
In that case, the State had fully participated on other issues (raised by the State) at a previous stage in the hearing, and the State presumably would be continuing to participate in litigating other party's contentions of interest to him in the present stage of the proceeding.
In the instant case, however, Attorney General Bellotti has not previously participated (except on a single issue mooted by New liampshire's re-submission of plans and the Licensing Board's Order of January 17, 1986, requiring the filing of new contentions) and the Attorney General has not indicated any intent to litigate any other party's contention in this proceeding.
Indeed, the Licensing Board's refusal to hear evidence on the adequacy of emergency response actions for the summer beach population near the Seabrook plant means that the Attorney General is precluded from participating in this hearing on the only issue relevant to his concerns -- the protection of Massachusetts residents on New !!ampshire beaches.
Thus, the Attorney General maintains that the Licensing Board's dismissal of his sole contention 6-
does give him a right of immediate appeal pursuant to 10 C.F.R.
S 2.714(a).
If this Board should nevertheless find that Attorney General Bellotti does n7t have a right of immediate appeal pursuant to 10 C.F.R.
S 2.714a, the Attorney General asks that the Board hear this appeal pursuant to the provisions of 10 C.F.R. 5 2.718(i) and S 2.785(b).
The Attorney General asserts that such discretionary review is warranted in this case because the Licensing Board's decision, refusing to hear evidence on the adequacy of emergency response actions and omitting the word " adequate" from the Commission's emergency planning regulations, indeed "affects the basic structure of th(is) proceeding in a pervasive or unusual manner."
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
The Attorney General maintains that the Licensing Board's interpretation of the Commission's regulations which resulted in the dismissal of Attorney General Bellotti's single contention from this proceeding will have a pervasive impact on this hearing far beyond the Attorney General's contention.
That interpretation -- precluding any consideration of the adequacy of protective response actions -- must necessarily affect the Board's ruling on every other contention admitted to this proceeding and will most certainly have an " unusual" affect on the Board's ability to make its ultimate finding
, 1
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requisite for licensure -- that there exists " reasonable assurance that adecuate protective measures can and will be taken."
10 C.F.R. 50.47(a)(1) (emphasis added).
The Attorney General therefore maintains that discretionary review of the Licensing Board's decision rejecting the Attorney General's contention is warranted.
Respectfully submitted, FRANCIS X.
BELLOTTI ATTORNEY GENERAL c
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s R L4C LN)
By:
t Carol S.
Sneider Assistant Attorney General Environmental Protection Division Department of the Attorney General One Ashburton Place, Room 1902 Boston, MA 02108 May 30, 1986
( --
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMI SSIO:1 In the Matter of
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PUBLIC SERVICE COMPA:lY OF NEW
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Docket No.(s) 50-433/444-OL HAMPSHIRE, ET AL.
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(Seaorook Station, Units 1 and 2)
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)
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CERTIFICATE OF SERVICE I,
Carol S.
Sneider, nereby certify that on May 30, 1986 I made service of tne within document oy mailing copies thereof, postage prepaid, oy first class nail, or as indicated by an asterisk by express mall.
Helen Hoyt, Chairperson Dr. Emneth A.
Luebke Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
- 1uclear Regulator /
U.S.
Pluclear Regulatory Commission commission East West Towers Building East ile s t Towers Building 4350 East West Hi ghway 4350 East.les t Hignway Bethesda, MD 20814 Betnesda, MD 20814 Dr. Jerry Harocur Sherwin E.
Turk, Esq.
Atomic Safety & Licensing Board Office of the Executive Legal U.S.
Nuclear Regulatory Di rector Conmission U.S.
Nuclear Regulatory conmission East West Towers Building Tenth Floor 4350 East West rii g a wa y 7735 Old Georgetown Road Bethesda, MD 20814 Bethesda, MD 20814 H. Joseph Flynn, Esq.
Stephen E.
Merrill, Esq.
Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee, Esq.
Federal Energency Management Assistant Attorney General Agency Office of the Attorney General 500 0 Street, S.W.
25 Capitol Street Washington, DC 20472 concord, NH 03301
r-i f
i Docketing and Service Paul is.
Fritzsche, Esq.
U.S.
- Iuclear Regulatory Office of the Public Advocate Commission State House Station ll?
Washington, DC.
20555 Augusta, ME 01333 Roberta C.
Pavear Ms. Diana P.
Randall State depresentative 70 Collins Street Town of !{ampton Falls Seabrook, N'i 03874 Drinkwater doad if ampton Fa lls, N!i 03644 Atomic Safety & Li cens i ng Rooert A.
Backus, Esq.
Appeal Board Panel Backus, Meyar & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty doard Panel Seacoast Anti-Pollution League U.S.
Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Paul ACEachern, Esq.
J.
P.
Nadeau Mattnew T.
drock, Es1 Board of Selectmen Shaines & McEachern 10 Central Road 25 daplewood Avenue Rye, NH 03870 P.O.
Box 360 Portsmoutn, M tf 03601 Ms. Sandra Gavutis, Chairperson
- tr. Calvin A.
Canney Board of Selectmen City flanager RFD 1, Box 1154 Ci ty 'f all ate. 107 126 Daniel Street E.
Kingston, NH 03827 Portsmouth, 'IH 03801 Senator Gordon J.
Humphrey Mr. Angelo itacairo3, Chairman U.S.
Senate 30ard of Selectmen Wasningtoa, DC 20510 25 di gh Road (Attn: Tom 3urack)
"ewbury, MA 19450 Senator Gordon J.
If uapa r e y Mr. Peter J.
Matthess 1 Pillsbury Street Mayor Concord, NH 03301 City Hall
'1.i 01950 (Attn: Herb Boynton)
- le Wo u r ypo r t,
Ar. Donald E.
Cnick William Lord Town ilanager 30ard of Selectmen rosn ot Exeter Town : fall 10 Front Street Friend Street Exeter, NH 03833 Amasbury, :14 n1413
,s-
'f Brentaood Board of Selectmen Gary U.
Holmes, Esq.
MFD Dalton load Holnes & Ellis Brentsood, NH 03833 47 Minnacunnet Road
'fa m p t o n, NH 03941 Pn11ip Ahrens, Es f.
Diane Curran, Esq.
Assistant Attorney General Harmon & Heiss Department of the Attorney Suite 430 General 2001 S Street, N.W.
State House Station #6 Mashington, DC 20009 Augusta, ME 04333 Tnomas G.
Dignan, Esq.
Richard A.
Hampe, Esq.
R.K.
Gad III, Es 1 Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 Boston, MA 02110 Beverly Hollingworth Edward A.
Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 442 J.U.
McCormack (POCH)
Boston, MA 02109 William Arastrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hangton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Mrs. Anne E.
Goodman, Chairperson Board of Selectman Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Admini strative Judge Sheldon Civil Defense Director J.
Wolfe, Chairman Town of 3rentwood Atomi c Safety and Li censing 20 Franklin Street Board Panel Exeter, NH 03833 U.S.
Nuclear Regulatory Commission Washington, DC 20555 Jerard A.
Croteau, Constable 82 Beach Road, P.O.
Box 5501 Salisoury, MA 01950 h A x M
. A_ t,J 1i.
Carol S.
Sneider Asalatant Attorney General Environmental Protection Division May 30, 1986