ML20207E096
| ML20207E096 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/17/1986 |
| From: | Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-015, CON-#386-15 OL, NUDOCS 8607220261 | |
| Download: ML20207E096 (12) | |
Text
7/17/86 8
00CMETED USHRC WITED STATES OF #,1 ERICA 21 A8:53 10 CLEAR REGL7EmY CCFS!ISSIW 0FFICE OF sew 7;:iy BEITE '11E A10MIC SAFEIY AND LICENSING EDUIDTihG & wvju, e?AN.
In the Matter of
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PUBLIC SEINICE OCF.PAIC OF
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Docket Nos. 50-443 OL la IMPSi!IPI, et al.
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50-444 OL
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Q1-Site Rnergency Planning (Seabrook Station, Units 1 and 2)
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and Safety Issues l'2C STAFF PISIUSE TO APPLIC#7FS' BUTIW TO SIRIIE SAPL'S WJECTIOT 70 7IE WITIIDPAWAL OF NEl711A".PSHIRE CmIINTIN 10 On June 12, 1986, the State of New Ilampshire filed a motion to withdraw its Contention NH-10 concerning the Seabrook control room design review.
On June 10, 1986, SAPL filed an objection to the State's Motion in which SAPL asserted that, inasmuch as SAPL was a cosponsor of N!!-10, the contention could not be withdrawn without SAPL's consent.
SAPL went on to detail the reasons underlying its refusal to consent to the withdrawal of the contention at this time.
On June 37, 1956, Applicants filed a response to SAPL's objection in which Applicants asserted that SAPL had withdrawn its sponsorship of NII-10 more than three years ago.
On July 3rd, SAPL responded to the Applicantn' filing by denying that it has withdrawn its sponsorship of Nil-10.
The Staff herein provides its views on whether NH-10 can be withdrawn without SAPL's consent.
The applicable law on this matter is fairly straightforward:
if SAPL remains a cosponsor of NII-10, the contention can not be withdrawn 86072P0261 860717 PDR ADOCK 05000443 N ( /\\ '
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8 j without the consent of that party.
On the other hand, if SAPL is not now a spon'sor of the contention, SAPL can not substitute itself for New Hanipchire at this stage of the proceeding,1_/ and the contention may be s
withdrawn without SAPL's consent.
Unfortunately, the facts surrounding whether SAPL does or does not i
remain a cosponsor of the contention are considerably murkier than is the i
applicable law.
Both the Applicants and SAPL have provided a less than complete chronology of the relevant facts; the Staff will attempt below to i
provide a more detnited history of the contention.
1 Contention 10, challenging the control room design for Seabrook, was propounded by the State of New Ilampshirc in its Supplemental Pctition to Intervene dated April 5,1982.
New Hampshire subsequently amended the contention in a pleading dated
- f. fay 24, 1982.
At that time, the i
Applicants had not completed their control room design, and the Staff had consequently not completed its review of the design.
Neither the Applicants nor the Staff chlected to the admission of the contention.
f On April 20, 1982, SAPL filed a supplemental petition in which it sought to adopt as its own Contentions 4 through 10 and 12 through 16 proffered by the State of New Ilampshire.
In its Order of September 14, 1982 ruling on contentions, the Licensing Board admitted New Hampshire i
Contention 10 and recognized SAPL as a cosponsor of the contention, j
There can thus be no question that, as of September 14, 1982, SAPL was I
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See, e.
Gulf States Utilities Company (Itiver Bend Station, Units 1 and., ALAB-444, 6 NRC 760, 705-97 ((1977).
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- a cosponsor of NH-10 and the contention could not have been withdrawn at that time' without SAPL's consent.
SAPL's interest in the contention appeared to undergo a dramatic change after September 14th.
On November 10, 1982, the Staff transmitted its first set of interrogatories to SAPL; included were specific interrogatories on the admitted contentions propounded by New Hampshire that SAPL had purported to adopt as its own (there were three such contentions: NH-9, HII-10, and NH-13).
In its response to the Staff's interrogatories filed on December 13, 1982, SAPL responded only to those interrogatories addressed to the sole admitted contention independently sponsored by SAPL, denominated as SAPL Supp.
3.
Subsequent conversations were held between counsel for SAPL and the Staff; the result was the January 6,1983 letter from Roy Lessy (former NRC Staff counsel) to Robert Backus (SAPL counsel) cited by Applicants in their motion to strike SAPL's objection.
In that letter, Mr. Lessy noted that Mr. Backus had indicated that SAPL did not respond to some of the Staff interrogatories (presumably including those addressed to NH-10) because SAPL would leave litigation of those contentions to the State of New Hampshire.
Based on that representation, Mr. Lessy indicated that the Staff would not seek to compel answers to its interrogatorie<,.
On December 8,1982, the Applicants transmitted their first set of interrogatories to SAPL.
In an undated response received by the Staff on January 10, 1983, SAPL indicated that, subject to the " Prairie Island" l
rule concerning cross-examination, SAPL would not be litigating a number
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The Applicants were not satisfied of contentions (including NH-10).
by this response, and filed a motion to compel on January 25, 1983.
In its response to the motion to compel (filed on February 4,1983), SAPL reiterated that although it might cross-examine or file findings on the contentions ~ for which it had not responded to interrogatories (including I'H-10) it did not intend to " litigate" those contentions (Response at 2),
and SAPL further made clear that it was not " sponsoring" those contentions (Response at 4).
In nn Order dated March 1,
1983, the Licensing Board ruled on Applicants' motion to compel.
The Board ruled that SAPL need not respond to interrogatories on contentions "not sponsored by or to be the subject of direct testimony proffered by [SAPL)," because the scope of the henring would be determined by those parties sponsoring or filing direct testimony on the contention.
Order at 2-4.
In this respect, the Board noted that although SAPL had adopted New Hampshire Contentions 0, 10 and 13. "SAPL later dropped these three contentions."
I_d. at 4,
d note 3 (citing the Staff's letter of January 6,1983).
In response to the Board's Order, SAPL filed supplemental answers to Applicants' interrogatories on March 10, 1983.
In the cover letter i
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The Prairie Island decision cited by SAPL indicated that an intervenor could cross-examine witnesses testifying on contentions not sponsored by that intervenor, provided the intervenor has a discernible interest in the resolution of the contention.
See Northern States Power Company (Prairio Island Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 392 n.6.
In its response to Applicants' interrogatories, SAPL asserted the right to cross-examine on all admitted contentions; SAPL did not treat differently those contentions sponsored by others which SAPL had earlier adopted from the other admitted contentions in which SAPL had not previously expressed any interest.
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- il accompanying its supplemental answers, counsel for SAPL indicated that "SAPL has ' decided to include responses related to those issues it may seek to litigate in this proceeding."
SAPL's supplemental response included answers to the interrogatories directed at SAPL Supp. 3 and i
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NECNP Contentions III.12 and III.13 (dealing with evacuation time estimates).
SAPL did not give any indication at that time (or any other time prior to its filing of June 19th of this year) that it maintained any interest in litigating any of the three admitted contentions sponsored by I
New Hampshire (including NH-10) it had adopted earlier.
Indeed, SAPL i
has not to this day responded to any interrogatories on NH-10.
Nor did i
SAPL challenge either the Staff's letter of January 6,1983 or the notation i
in the Board's Order that SAPL had dropped the three New Ilampshire l
contentions.
Although SAPL never formally withdrew its sponsorship of l
the three contentions, its actions in early 1983 made evident that SAPL had in fact abandoned the contentions. b The history detailed above would seem to support Applicants' position that SAPL withdrew its sponsorship of NH-10 more than three j
years ago.
The events surrounding SAPL's appeal of the dismissal of j
SAPL Supp. 3 however, suggest a different conclusion.
As noted I
previously, SAPL Supp. 3 was the only contention proffered by SAPL 1
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One additional fact should be mentioned in this regard.
On February 11, 1963, Applicants moved for summary disposition of New j
Hampshire Contentions 9 and 13.
The Staff filed a motion for partial summary disposition of NH-13 on - February 14th; the Staff filed r
responses to Applicants' motions on March 18th (for NII-13) and j
March 21st (for NH-9).
The State of New Hampshire filed responses to the motions on March 23, 1983.
SAPL did not file any response 1
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or take any position on summary disposition of either consention.
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l l i that the Board admitted to the proceeding in its Order of September 14, 1982.
SAPL and the Annlicants filed cross-motions for summary disposition of this contention on February 11, 1983.
In an unpublished Memorandum and Order dated May 11,
- 1983, the Board granted Applicants' motion and dismissed SAPL Supp. 3 from the proceeding.
SAPL filed an appeal from the Board's ruling on May 26, 1983. Well aware of the disfavor with which the Appeal Board views interlocutory appeals, SAPL argued that its appeal was not interlocutory because, "by climinating SAPL's only independent contention in the proceeding, the Board has, in a substantial sense, eliminated SAPL's right to participate as a party in this proceeding."
SAPL Appeal at P.
SAPL did, however, inform the Appeal Board that "SAPL still has a technically viable contention related to control room design." Id.
In their response dated June 8,1983, Applicants argued that SAPL did not have an appeal as of right because of the pendency of NH-10:
...SAPL " joined" and adopted another contention (of New Hampshire) and thus is still a party; SAPL has evidenced no interest in dismissing that other contention.
This being the case, no direct appeal is available.
Applicants' Response at 2 (citation omitted).
The Staff also argued that an appeal as of right did not lie, in part because of the pendency of NII-10. See Staff Response of June 15, 1983 at 2, n.3.
The Appeal Board denied SAPL's appeal as interlocutory on June 20, 1983.
In its Order, the Appeal Board noted that although SAPL was no longer the originator of any remaining contentions, SAPL had " joined in a contention filed by the State of New Hampshire that remains before the Licensing Board" and that SAPL's participational rights with respect to that contention were not affected by the Licensing Doard's dismissal of
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SAPL Supp. 3.
A LAB-731, 17 NRC 1073, 1074.
The Appeal Board did i
not address (and may well have been unaware of) the Licensing Board's Order of f.farch 1,1983 in which the Board found that SAPL had dropped (among other contentions) NH-10.
In sum, the Licensing Board ruled on March 1,1983 that SAPL had dropped NH-10, while, conversely, the Appeal Board ruled on June 20, 1983 (ir ALAD-731) that SAPL was still a party to the contention. In the subsequent years, the Applicants substantially completed their control rocm design,
and the Staff performed its review of that design.
Conversations were held with New Hampshire, and eventually that party uns sufliciently satisfied to withdraw its contention.
During this time, SAPL never responded to interrogatories or indicated in any way prior to June 10, 1980, that it was interested in the resolution of the contention.
On June 17, 1986, Applicants filed a motion for, inter alia, authorization by the Board for the issuance of a low-power license.
If the Applicante are correct in their view that SAPL had abandoned NH-10, the contention would no longer be a part of this proceeding and should thus not play a role in the Board's deliberation of whether issuance of a low-power license should be authorized.
On the other hand, if as SAPL urges the contention can not be withdrawn without that party's consent, the Board would need to resolve NH-10 as well as the other matters adverted to in Applicants' motion of June 17th before it could authorize 2
issuance of a low-power license.
The Staff submits that SAPL's actions after NH-10 was admitted to 4
the proceeding support the conclusion urged by Applicants that, as the Licensing Board found in flarch of 1983, SAPL had abandoned its
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' sponsorship of NH-10.
The parties, however, took a different view before the ' Appeal Board, which reached a different result in June of i
1983.
Unfortunately, neither SAPL nor the Applicants addressed the contradictory history of this contention in their filings.
Under the circumstances, the Staff believes that additional information would be helpful in resohing this matter.
Particularly, SAPL should be asked to address whether it had withdrawn its sponsorship of NH-10 and, if not, why that party never challenged either the Staff's letter of January 6, 1983 or the Licensing Board's notation in its f.tarch 1, 1983 Order that 1
SAPL had dropped the contention.
SAPL should also be asked to indicate uhy it has never responded to interrogatories addressed to Nil-10.
All the parties should be asked to address their bases for representing to the Appeal Board that SAPL was still a sponsor of NH-10, their bases for advancing a different position today, and whether ALAB-731 forecloses the Licensing Board from even considering whether SAPL did or did not i
withdraw NII-10.
In order to reach a more timely and effectivo resolution of this matter, the Staff suggests that the Board convene a conference of
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counsel (telephonically or in person) to allow the parties to respond to I
the questions posed above.
In the event the Board determines that further proceedings are required on Nil-10, the Staff suggests that such proceedings be held in an expedited manner consistent with the request set forth at Page 5, f 3 of i
Applicants' motion of June 17, 1980 (in which the Applicants requested that the Board promptly schedule any proceedings that might lead to a partial initial decision authorizing a low-power license for Seabrook).
The 4
Staff reiterates its views provided to the Board on July 7,1986 that the
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-g-procedures set forth in Applicants' June 17th motion are equitable ones, and that the Staff is not aware of any technical bar to the issuance of a low power license for Seabrook after the completion of any hearings that may be required.
Respectfully submitted, A'
Robert G. Perlis Counsel for NRC Staff Dated at Dethesda, ?!aryland this 17th day of July,1986 f
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMf.IISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL-1 11EW IIAMPSIIIRE, et al.
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50-444 OL-1
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On-site Emergency Planning (Scabrook Station, Units 1 end 2)
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and Safety Issues I
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANTS' MOTION TO STRIKE SAPL'S OBJECTION TO THE WITIIDRAWAL OF NEW HAf.1PSIIIRE CONTENTION 10" in the above proceeding have been served on the following by deposit in the United State mell, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 17th day of July,1986.
Sheldon J. Wolfe, 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 I! arbour
- Carol Sneider Administrative Judge Assistant Attorney General i
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 Beverly IIollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General llampton, NI! 03842 George Dana Bisbec Arinistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, NH 03301-6397 Kensington, Nil 03827 Richard A. Ilampe, Esq.
New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NI! 03301
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. O Calvin A. Canney, City Manager Allen Lampert City Hall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Plachiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road flampton Falls, NH 03844 Newbury, P1A 09150 Mr. Robert J. Harrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Ilampshire Salisbury, MA 01950 P.O. Bcx 330 Manchester, NH 03105 Diane Curran, Esq.
Harmon & Weiss Robert A. Backus, Esq.
2001 S Street, N.W.
Backus, Meyer t4 Solomon Suite 430 116 Lowell Street Washington, D.C.
20009 Manchester, Ull 03106 Edward A. Thomas Philip Ahrens, Esq.
Federal Emergency Management Agency Assistant Attorney General 442 J.F. McCormack (POCH)
Office of the Attorney General Boston, f.lA 02109 State flouse Station, #G Augusta, ME 04333 II.J. Flynn, Esq.
Thomas G. Dignan, Jr., Esq.
Assistant General Counsel Bopes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W.
Boston, BIA 02110 Washington, D.C.
20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board
- 5 f.larhet Street U.S. Nuclear Regulatory Commission Portsmouth., NH 03801 Washington, D.C.
20555 Atomic Safety and Licensing Paul McEachern, Esq.
Appeal Panel
- Matthew T. Brock, Esq.
U.S. Nuclear Regulatory Commission Shatnes & McEachern Washington, D.C.
20555 25 Maplewood Avenue P.O. Box 360
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Portsmouth, NH 03P01
Docketing and Service Section*
William Armstrong Office of the Secretary Civil Defense Director U.S. Nucle &r 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, f.fayor 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 f11chael Santosuosso, Chairman William S. Lord Dohrd of Selectmen Board of Selectment South Hampton, NI! 03827 Town llall - Friend Street Amesbury, MA 01913 f.ir. 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 r
North flampton, NH 03802 R. I'. Gad III, Esq.
Gary W. IIolmes, Esq.
Hopes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Doston, f.fA 02110 Hampton, NII 03842 Judith H. Mitner, Esq.
Silverglate, Cortner, Baker Fine and Good 88 Proud Street Boston, f.!A 02110
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f,Y Robert G. Perlis Counsel for NRC Staff I
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