ML20206P734

Response Opposing Seacoast Anti-Pollution League 860610 Motion to Dismiss Unit 2 OL Application on Grounds That Util Not Pursuing const.ALAB-758 & ALAB-762 Rulings Should Be Upheld Due to Lack of New Argument.W/Certificate of Svc

ML20206P734
Person / Time
Site:	Seabrook
Issue date:	06/27/1986
From:	Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-752 ALAB-758, ALAB-762, OL, NUDOCS 8607020228
Download: ML20206P734 (7)

Text

i G Jun 27, 3935 WITED STATES OF # ERICA NUCLEAR REGUIAIWY CDflISSION O ED -

BFIGE 71E A'IG11C SAFEIY A!O LICENSI

,1 A9.f3 In the Matter of ) khC{CFSEgg PCBLIC SElWICE GAFANY OF DocketNosfN$6 EL ID! HMPSIIIRE, et al . ) 50-444 OL

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(Scabrook Station, Units 1 and 2) )

NRC STAFF RESPWSE TO SAPL SUTIW TO DIS 11SS 'IHE APPLICATIN IM WIT 2 On June 10, 1986, the Seacoast Anti-Pollution League ("SAPL") filed a motion requesting that the Licensing Board dismiss the application for an operating license for Seabrook Unit 2. As grounds for its motion, SAPL asserts that the joint owners of Seabrook are not actively pursuing the construction of Unit 2, and that 10 C.F.R. 550.57(o) prohibits the Commission from issuing an operating license unless construction of a facility has been "substantially completed."

A brief review of the history of this proceeding is appropriate here, for this is not the first time the issue of the dismissal of the application for Unit 2 has been raised (in fact, this is not even the first time SAPL has raised the issue). The initial appearance of this issue was as a contention in a late-filed petition to intervene submitted on September 6, 1983 by John Doherty. Mr. Doherty asserted that the construction of Unit 2 was not close to completion, and that Section 50.57(a) therefore i

required dismissal of the application. Mr. Doherty's petition to intervene I was denied on timeliness grounds by the Licensing Board on November 0607020220 e60627 3 g DR ADOCK 0500 L

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g 15, 1983. An appeal was taken, and the Appeal Board affirmed the denial of Mr. Doherty's petition to intervene. ALAB-758, 19 NRC 7 (January ,

24, 1984). In ALAB-758, the Appeal Bcard dealt with the substantive issue raised by Mr. Doherty as follows:

... First, the Licensing Board correctly held that it is not its responsibility, but that of the Director of Nuclear Reactor Regulation, to make the finding required by Section 50.57(a)(1) as a precondition to the issuance by the Director of an operating license.

Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 410-11 (1974). Second, there is nothing in the Commission's regulations specifically providing that a reactor must have reached a particular stage of completion before an operating license application may be filed. Third , just 16 months ago the Commission denied a petition for rulemaking that sought amendments to the Rules of Practice that would have, inter alia, limited the scope of each operating license hearing to a single reactor unit even if that unit were one of several similar units constructed on a multi-reactor site. 47 Fed. Reg. 46,524 (1982). In support of his proposal, the petitioner had noted that the " time lag between inservice dates for individual reactors at multi-reactor nuclear plants has been increasing for many years." Ibid. In the Commission's view, however, that consideration did not provide a sufficient basis for requiring an exclusive hearing on each reactor unit." Id. at 46,525.

19 NRC at 11, n.18.

Less than three weeks after Mr. Doherty filed his petition to intervene, SAPL itself filed a motion on September 26, 1983 to have the application for Unit 2 dismissed. SAPL's reasoning was identical to Mr.

Doherty's; SAPL relied on the unfinished state of Unit 2 and the language in Section 50.57(a) prohibiting the issuance of an operating license prior to the "subtantial completion" of a facility. This reasoning is also identical to that relied upon by SAPL in its instant motion.

Responses to SAPL's carer motion were filed by the Applicants on October 6, 1983, and by the Staff on October 17, 1983. Both the Applicants and Staff pointed out that the Licensing Board's role is to decide issues in controversy between the parties, that those issues raised

in the Seabrook proceeding applied equally to both Units 1 and 2, and that the finding required by Section 50.57(a) is to be made by the NRC Staff rather than the Licensing Board. On January 13, 1984, the Licensing Board issued a Memorandum and Order agreeing with Applicants and the Staff and denying SAPL's motion.

SAPL appealed the Licensing Board's denial of its motion. In rejecting SAPL's appeal, the Appeal Board reaffirmed its earlier ruling in ALAB-758 to the effect that the Commission's regulations do not require that a reactor reach a certain stage of completion before an application for an operating license can be filed, and went on to add:

Further, we find not objectionable the practice of considering in a single proceeding those issues common to all units of a multi-unit facility. Indeed, the practice seems to us to make very good sense.

In the proceeding at bar, many common issues have already been tried or will be heard at a future evidentiary session: e room design, equipment environmental qualification, l. . . various and control aspects of onsite and offsite emergency planning. We know of no useful purpose that would be served by now resolving these issues for Unit 1 alone and then replowing the exact same ground at some later date in the context of Unit 2.

ALAB-762,19 NRC 565, 569 (March 16,1984) (footnote omitted).

In its instant motion , filed more than two years after the Appeal Board upheld the Licensing Board's denial of its earlier motion to dismiss the application for Unit 2, SAPL is trying again. SAPL's new motion is essentially the same motion that party filed in 1983. SAPL does not identify any new or changed circumstances in its latest motion, nor does SAPL provide any new argument calling into question any of the earlier rulings by either the Licensing Board or the Appeal Board. In fact, SAPL does not even allude to any of the earlier filings or rulings on the subject of the dismissal of the Unit 2 application. Instead, SAPL simply

p i cites Section 50.57(a) and states that Unit 2 is only 26% completed with construction currently suspended.

Without repeating all the arguments made two years ago on this issue, the Staff submits that the Licensing Board and the Appeal Board were correct in their earlier rulings and that the Licensing Board should once again deny SAPL's motion to dismiss the application for Unit 2. As both Boards noted in the past, Section 50.57(a) requires that the Staff .

make a finding that construction is substantially completed before a license can be issued; that Section does not require that a Licensing Board make such a finding before it can authorize the issuance of a license. The Commission's regulations clearly do not require that construction reach a certain level before issuance of an operating license can be considered. And as the Appeal Board noted in ALAB-762, where a site has two identically-designed units as is the case with Seabrook, there is good reason to settle in one proceeding issues common to both units. SAPL has failed to provide the Board with any reason why its earlier rulings (or the reasoning expounded by the Appeal Board in ALAB-758 and ALAD-762) should be reconsidered or reversed. Under the circumstances, the Staff submits that SAPL's latest motion should be denied.

Respectfully submitted, Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 27th day of June,1986

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

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW HAMPSHIRE, et _al. _

) 50-444 OL

)

(Seabrook Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO SAPL MOTION TO DISMISS THE APPLICATION FOR UNIT 2" 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 27th day of June,1986.

Helen Iloyt, 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 Harbour

• Ms. Carol Sneider, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, D.C. 20555 Boston, MA 02108 Deverly llollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General llampton, N!! 03842 George Dana Bisbee Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street i RFD 1 Box 1154 Concord, NH 03301-6397 Kensington, NH 03827

- Richard A. Ilampe Esq.

New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301 I

., 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, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Hampton 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.

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

Backus, Meyer & Solomon Suite 430 116 Lowell Street Washington, D.C. 20009 Manchester, NH 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.

Assistant General Counsel Ropes & 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, N!! 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, NH 03801

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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 Hampton, Nil 03827 Town Hall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen, Board of Selectmen Town Ofnce 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North IIampton, Nil 03862 R. K. Gad III, Esq. Gary W. Holmes, Esq.

Ropes a Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 02110 Hampton, Nil 03842 Judith II. Mizner, Esq.

Silverglate, Gertner, Baker Fine and Good 88 Broad Street Boston, MA 02110 Itobert G. Perlis Counsel for NRC Staff l

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