ML20199B655

Responds to Town of West Newbury Petition to Intervene. Contends That West Newbury Has Not Met Requirements of 10CFR2.714 for Intervention as Party to Proceeding.W/ Certificate of Svc

ML20199B655
Person / Time
Site:	Seabrook
Issue date:	06/12/1986
From:	Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-584 OL, NUDOCS 8606170192
Download: ML20199B655 (9)

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BEIME 11E A101IC SAFEIY AND LICENSING BQ41D N #'h I

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In the hlatter of )

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IGLIC SERVICE GIPANY OF ) Docket Nos. 50-443 OL NEW IIA *,PSillRE, et al . ) 50-444 OL

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(Seabrook Station, thits 1 and 2) )

NRC STAFF RESIG SE TO PETITIOT

'ID INIERVINE OF TIE 10hN OF WEST NEWDLEY On May 23, 1986, the Town of West Newbury filed a Petition to Intervene in the Seabrook proceeding. The Town pointed out in its Petition that it is interested in participating in the litigation of Massachusetts emergency planning issues; the Town requested that it be granted intervention status as a full party pursuant to 10 CFR 52.714 or, if that petition is denied, that it be permitted to participate as an interested governmental body pursuant to 10 CFR 52.715(c). For the ressons presented below, the Staff submits that the Town has not met the r,tandards for late intervention under $2.714(a), but should be granted permission to participate as an interested municipality pursuant to 52.715(c).

SEC'f 0N 2.714 PETITION In order to be granted admission under Section 2.714, a party must establish a cognizable interest that may be affected by the outcome of the proceeding, and it must tender at least one admissible contention. If its

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s o petition to intervene is out of time, a party seeking admission must also demonstrate that it meets the late-filing requirements set forth in 10 CFR ,

f 7.714(a) .* -

The Town states in its Petition that it is one of the communities in the Commonwealth of Massachusetts located within the Emergency Planning Zone for Seabrook, that it wishes to participate in the consideration of emergency planning issues concerning any Massachusetts emergency response plan that may be submitted for the plant, and that it has not yet filed contentions because no such plan has yet been tendered to the NRC. The Staff believes the Town has established standing to intervene in the proceeding, and agrees that the time for filing contentions related to emergency planning in the Commonwealth of Massachuestts has not yet been reached. If the Town's Petition were timely, the Staff would thus not have opposed a conditional grant of the Petition (a final ruling on the Petition would necessarily have to await the submittal of at least one admissible contention).

Unhappily, the Town's Petition is not timely. Petitions to intervene in this case were due by November 18, 1981. See 46 Fed. RS. 51330, 51331 (October 19, 1981). The Town's Petition was not filed until May 23, 1986, more than four and one-half years later. Section 2.714(a) expressly states:

Montimely filings will not be entertained absent a determination by the Commission , the presiding officer or the atomic safety and licensing board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a 1

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. balancing of the following fa in addition to those set out it paragraph (d) of this section gors  :

(i) Good cause, if any, for failure to file on time. ,

Til) The availability of other means whereby the petitioner's . -

interdst will be protected. -

(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

There are a few well-sett!cd principles of law that must be applied to untimely intervention petitions. The burden is upon the untimely petitioner to demonstrate that a balancing of the above-enumerated factors favors late admission into the proceeding. Duke Power Company (Perkins Station , Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352 (1980). In balancing the factors, the good cause for failing to file on time is especially important; failure to show good cause leaves a petitioner with a heavier burden on the other four factors . See, g, e

Puget Sound Power and Light Company (Skagit Project , Units 1 and 2),

ALAD-552,10 NRC 1, 5 (1979). And it is also well to keep in mind that the Commission has recently made plain its view that the Commission's procedural regulations must be complied with .

Commonwealth Edison Company (Braidwood Station , Units 1 and 2)

CLI-8E-08, 23 NRC (April 24,1986).

Applying the above principles to the Town's Petition, it is clear that the Town has not met its burden under $2.714(a). The Town makes no mention in its filing of the balancing test identified in that Section. While 1/ The factors set forth in paragraph (d) principally relate to a party's standing to participate in a proceeding. As noted, the Staff believes that the Town has established its standing to participate.

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. there is a little information in the filing that can be related to some of the factors,. other factors are not addressed at all. Application of the inform [1tio contained in the pleading to the five factors yields ' the ~ 7 following:

(1) The Town provides no justification for its failure to request party status in 1981. Based on the Petition, it must be concluded that good cause does not exist for the late filing.

(2) The Town does not address whether other means exist whereby their interests could be protected. Considering that the Town is (presumably) involved to some extent in the preparation of emergency response plans, it is not at all clear that any concerns the Town may have with regard to emergency planning could not be resolved outside the NRC hearing process.

(3) The Town does indicate that it has particular knowledge with of the adequacy and viability of any plan concerning the Town and whether such a plan could be implemented.

(4) The Town notes that the Attorney General of Massachusetts has intervened, but asserts that his interests may not be the same as those of the Town. In addition, the Town states that the Attorney General may lack "the particular knowledge and perspective as [has] the Town insofar as any plan would affect the Town." Without knowing the exact interests the Town wishes to advance in the proceeding, it is impossible at this time to assess the extent to which the Attorney General would protect the Town's interests.

b i (5) The Town notes that, inasmuch as no emergency plans have been filed for Massachusetts, its participation should not result in any .

delay in the proceeding. 7 The~ Town has made an adequate showing on Factors 3 and 5. Not enough information is provided to allow for a determination on Factor 4.

And no information is given for Factors 1 and 2. Given the importance of the good cause factor and the failure of the Town to carry its burden on that factor (as well as two other factors), the Staff submits that the Town has not met its burden in demonstrating that it meets the late-filing requirements of Section 2.714(a). Under the circumstances, its petition for admission as a party pursuant to 10 CFR 92.714 must be denied.

II. PARTICIPATION AS AN INTERESTED MUNICIPALITY As noted above, the Town requested that, in the event its Petition to Intervene pursuant to Section 2.714 is denied, it be granted leave to participate as an interested municipality pursuant to 10 CFR 92.715(c).

The Staff has no objection to the admission of the town to this proceeding pursuant to that Section. The Staff does note that the Town must take the proceeding as it finds it. - The Staff would also note that a 62.715(c) participant can play as active a role in a proceeding as that entity chooses; many such participants have elected to file contentions in 2/ See, e. ., Long Island Lighting Company (Shoreham Station, Unit 1), L 13, 17 NRC 469,471 (1983). This may not affect the Town, inasmuch as the Town appears to be interested only in the litigation of Massachusetts emergency planning documents. These documents have not yet been submitted to the NRC: all of this proceedings dealings with emergency planning in Massachusetts lie in the future.

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. I the emergency planning portion of this proceeding involving planning in The Town should be aware that if it

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the State of New Hampshire.

intends to= file contentions on planning in Massachusetts, its contentions' ' 7 may be required to meet the same timeliness and specificity standards as those submitted by 52.714 parties. Gulf States Utilities Company (River Bend Station, Units 1 and 2), LBP-76-32, 4 NRC 293, 294 (1976).

III. CONCLUSION For the reasons presented above, the Staff submits that the Town of West Newbury has not met the requirements set forth in 10 CFR 52.714 for intervention as a party to this proceeding, but the Staff does not oppose the Town's admission as an interested municipality pursuant to 10 CFR 52.715(c) .

Respectfully submitted, Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 12th day of June,1986 b

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD I in the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW HAMPSIIIRE, et _a_l_.

) 50-444 OL

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(Seabrook Station Units 1 and 2) )

1 CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF RESPONSE TO PETITION TO INTERVENE OF Tile TOWN OF WEST NEWBURY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 12th day of June, 1986.

s IIelen Hoyt, Esq. , Chairman

• Dr. Emmeth A. Luebke*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington D.C. 20555 Washington, D.C. 20555 Dr. Jerry liarbour* Ms. Carol Sneider Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General 1

U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, D.C. 20555 Boston, MA 02108 Beverly llollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General Hampton, N!! 03842 George Dana Bisbee Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, Nil 03301-6397 Kensington, NIX 03827 Richard A. Hampe, Esq.

New flampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301

. Calvin A. Canney, City Manager Allen Lampert City IIall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street -

• Exeter, Nil 03833 '~ 7 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Ilampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Ilarrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Hampshire Salisbury, MA 01950 P.O. Box 330 Manchester, NH 03105 Diane Curran, Esq.

Ilarmon & Weiss Robert A. Backus, Esq. 2001 S Street, N.W.

Backus, Meyer & Solomon Suito 430 116 Lowell Street Washington, D.C. 20009 Manchester, Nil 03106 Edward A. Thomas Philip Ahrens, Esq.

Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 II.J. Flynn, Esq. Thomas G. Dignan, Jr. , Esq.

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Assis. ant General Counsel Hopes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110 Washington, D.C. 20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board

• 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, Nil 03801 Washington, D.C. 20555 Atomic Safety and Licensing Paul McEachern, Esq.

Appeal Panel

• Matthew T. Brock, Esq.

U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C. 20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, N!! 03801

Docketing and Service Section* William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C. 20555 10 Front Street -

Exeter, NH 03833 " -

Maynard L. Young, Chairman Board of Selectmen Peter J. Matthews, Mayor 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectmen South llampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, N!! 03862 R. K. Gad !!I, Esq. Gary W. Holmes, Esq.

Ropes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, P1A 02110 Hampton, NH 03842 Robert G. Perlis Counsel for NRC Staff

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