ML20207K992

New England Coalition on Nuclear Pollution Objection to & Motion for Reconsideration of Licensing Board Memorandum & Order of 861223.* Schedule for Resolution of Issues Proposed.Certificate of Svc Encl

ML20207K992
Person / Time
Site:	Seabrook
Issue date:	12/31/1986
From:	Curran D HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20207K837	List: ML20207K834 ML20207K923 ML20207K992
References
OL, NUDOCS 8701090582
Download: ML20207K992 (8)

Text

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. . I December 31,.1986 00LKETED US!!RC UNITED STATES NUCLEAR REGULATORY COMMISSION,87 JM -5 P3 :08 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD GFFIE > -

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In the Ma tter of )

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Public Service Company of )

New Hampshire, et al. ) Docket Nos. 50-443 OL

) 50-444 OL (Seabrook Station, Units 1 & 2) ) OFFSITE EMERGENCY

) PLANNING

)

NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S OBJECTION TO AND MOTION FOR RECONSIDERATION OF LICENSING BOARD'S a

MEMORANDUM AND ORDER OF DECEMBER 23, 1986 j On December 18, 1986, Applicants filed a Pe tition Under 10 1

CFR 2.758 and 10 CFR 50.47(c) with Respect to the Regulations Requiring Planning for a Plume Exposure Pathway Emergency Plan- '

ning Zone in Excess Of A One-Mile Radius, which requested a reduction in the size of the Seabrook Emergency Planning Zone

("EPZ") from ten to one mile in radius. Cn December 22, 1986, in response to Applicants' petition, NECNF and other intervenors jointly requested the Commission to assign the Chief Judge of the Atomic Safety and Licensing Board to hold adjudicatory hearings

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on the disposition of Applicants' petition.1

, The following day, the Licensing Board issued an order sua sponte r eq61 ring the sub-

mission of all responses to Applicants' petition by ' January 27, 1987. The Board apparently plans to rely on af fidavits from the 4

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1 Joint Petition for Appointment of Administrative Judge and Request for Hearing. By order of December 24, 1986, the Commis-sion referred the petition to the Chief Administrative Judge.

8701090582 861231 PDR ADOCK 05000443 O PDR .,

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parties in considering the merits of Applicants' petition, as provided by 10 CFR S 2.78S(b) .

NECNP objects to the Licensing Board's order and requests  !

that the Board reconsider its ruling in the following respects:

1) NECNP requests that the Board withdraw its order and defer all action on Applicants' petition until the Chief Judge of the Atomic Safety and Licensing Board has ruled on "Intervenors' Joint Petition for Appointment of Administrative Judge and Request for Hearing," which the Commission referred to the Chief Judge by order of December 24, 1986. It is NECNP's position that because of the petition's unprecedented nature, the complex tech-nical and legal issues of first impression that are presented, and the extraordinary potential impact on emergency planning for Seabrook and other plants, it should be handled by the Chief Judge of the Licensing Board.

2) In the event that this Board retains jurisdiction over Applicants' petition, NECNP objects to the didposition of Applicants' petition by affidavit and oral argument, and requests a formal adjudicatory hearing as guaranteed by the Atomic Energy Act, 4 2 U. S.C. S 2239(a). As the court held in Uni ~on of Con-cerned Scientists v. U.S. Nuclear Regulatory Commiss' ion, 735 F.2d 14 37, 14 4 3 (D. C. Ci r. 1984), once a licensing proceeding is com-menced, it must encompass all issues that are material to the issuance of the license. The Commission has no authority under the law to shunt these particular issues material to Applicants'

1 operating license application -- upon which, it is clear, the licensing of the plant will stand or fall -- into an informal proceeding in which no opportunity for discovery or cross-examination is provided.

NECNP realizes that its position may contradict the Commis-sion's policy with respect to procedures for obtaining regulatory.

waivers, as outlined in 10 CFR S 2.785. If the Board finds that it is constrained f rom of fering an adjudicatory hearing on Applicants' petition under the requirements of 10 CFR S 2.785, NECNP requests that the Board immediately certify this issue of interpretation of the Atomic Energy Act to the Commission.

3) Even if the offer of an opportunity to file counter-affidavits and present oral argument on Applicants' petition could be found to satisfy the hearing requirements of the Atomic Energy Ac t, the schedule established by the Licensing Board does not provide NECNP with a remotely meaningful opportunity to respond to Applicants' petition.

First, the schedule is so compressed as to allow virtually I no time for the review of and preparation of responses to Applicants' extensive and complex submittal. The Licensing Board has allowed intervenors only one month to respond to a series of documents and positions that it has- taken the NRC and its con-tractors many months to preliminarily review. Th e N RC Staf f and Brookhaven Na tional Laboratory, whose assistance cost the tax-  ;

payers $240,000, took four months to perform what Brookhaven con-  !

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. I cedes to be an extremely limited review of the Risk Management and Emergency Planning Study and Emergency Planning Sensitivity

Study. In addition, the NRC, Brookhaven, and Lawrence Livermore Laboratories took many more months to review the Probabilistic Safety Assessment that was submitted by Public Service Company in 1983.2 In light of the time and resources needed by the NRC Staff to perform even a limited review of these documents, the extraor-i dinarily restricted schedule established by the Board for inter-j venor responses does violence to the concepts of fairness and balance in providing an opportunity to make a meaningful contri-

! bution to the record. "When parties to an action are not permitted to prepare their case, the fundamental fairness of the administrative process is called into question." Cuomo v. U.S.

l l Nuclear Reaulatory Commission, No. 84-1264, slip op. at 5 (D.C.D.C., April 25, 1984). The Board is required by basic tenets of due process of lad to establish a s'chedule that allows l

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2 None of these documents were considered licen ing documents, I and thus there was no reason for NECNP to review them before Applicants' petition was filed. In fact, until September of 1986, Applicants refused to send the parties copies of the Risk l Management and Emergency Planning Study and Emergency Planning i

Sensitivity Study on the ground that they did not constitute l licensing documents and therefore were not required to be served on the parties. Moreover, throughout the process of preparing and reviewing the risk management and emergency planning sensitivity studies, Applicants studiously avoided making any formal request for a waiver from the regulations -- thus depriv-ing NECNP of the opportunity of requesting discovery on the docu-ments.

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a balanced opportunity for intervenors to retain consultants, j review this massive record, conduct a meaningful evaluation, and 4

prepare a response.

Moreover, the Board's failure to provide intervenors with an opportunity for discovery against Applicants and the NRC Staff

deprives NECNP of its due process right to make a meaningful con-tribution to the hearing record. Applicants' petition is based in large part on a. sudden change in their evaluation of the

! strength of the Seabrook containment. This change in position involves complex technical analyses of plant behavior and acci-dent consequences, which are manifested in the manipulation of hundreds of assumptions contained in numerous computer codes, i Moreover, Applicants' petition and the reviews conducted by the 1

j NRC are heavily dependent on expert opinions regarding the risks .

of severe accidents at the Seabrook plant. It is vitally impor-

! tant that the Licensing Board provide some opportunity for dis-4 covery to discern the basis.for the change in Applicants' posi-

! tion and the basis for its and the NRC Staff's opinions.

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In addition, it would be irresponsible and.' legally unsup-portable for this Board to decide such a weighty and f ar-reaching question as whether the size of the Seabrook Emergency Planning Zone could be reduced by a factor of ten, without taking a close and searching look at the basis for Applicants' petition. That close look cannot be afforded.by the simple review of conflicting i

affidavits, where no opportunity has been afforded to probe the 1

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basis for Applicants' sudden change in its position regarding the i strength of the Seabrook containment.

For these reasons, NECNP objects to the schedule established j by the Board and requests a period of time sufficient to respond to the petition, including time for discovery against Applicants and the NRC Staf f. The parties are entitled under the law to no less.

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4) NECNP proposes the following as a reasonable schedule for the resolution of the issues presented by Applicants' waiver petition:

l Discovery January 1 - May 1, 1987 i Direct testimony due July 1 i

Rebuttal testimony due August 1 ,

i l Ad jud icatory hearings commence September 15 --

Respectfully submitted,

'1 Ok Diane Curran HARMON & WEISS 2 001 "S" St r ee t .N .W. Suite 430 Washington, D.C. 20009 i

December 31, 1986 (202) 328-3500 l

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CERTIFICATE OF SERVICE M g titp

'";N H I certify that on December 31, 1986, copies of NECNP'S REPLY TO NRC STAFF'S RESPONSE TO NECNP'S CONTENTIONS ON THE.g W HAMPSHIRE STATE AND LOCAL RADIOLOGICAL EMERGENCY RESP @SDhLNbSP3 I :08 and OBJECTION TO AND MOTION FOR RECONSIDERATION OF LICENSING BOARD'S MEMORANDUM AND ORDER OF DECEMBER 23, 1986 wergrserved on y the following by first-class mail or as otherwise indikated: e . avia M A Ns

• Helen F. Hoyt, Chairman Rep. Ro ber ta C. Pevear Atomic Safety and Licensing Board Drinkwater Road U.S. Nuclear Regulatory Commission Ha mp ton, Fa lls, NH 03844 Washington, D.C. 20555 Phillip Ah rens, Esq.

• Dr. Jerry Harbour Assistant At torney General Atomic Sa fety and Licensing Board State House, Station # 6 U.S. Nuclear Regulatory Commission Augusta, ME 04333 Washington, D.C. 20555

• *Th oma s G . Dignan, Esq.

• Dr. Emmeth A. Lu ebke .R.K. Gad II, Es q .

4 Atomic Safety and Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, D.C. 20555 Boston, MA 02110 Atomic Safety and Licensing Board Ro be r t A . Ba ck us , Es q .

Panel Backus, Meyer & Solomon l U.S. Nuclear Regulatory Commission 111 Lowell Street I

Washington, D.C. 20555 Manchester, NH 03105 i Atomic Sa fety and Licensing Appeal

• Ro be r t G . Perlis, Esq.

Board Panel Sherwin E. Tu t k , Es q .

1 U.S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D.C. 20555 Director U.S. Nuclear Regulatory Commission Cocketing and Service Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Angie Machiros, Chairman Board of Selectmen Mrs. Anne E. Goodman Newbury, MA. 01950 Board of Selectmen -

13-15 New Ma rket Road H. Joseph Flynn, Esq.

Durham, NH 03842 Of fice of General Counsel Federal Emergency Management Agency William S. Lo r d , Selectman 500 C Street S.W.

Town Hall -- Friend Street Warhington, D.C. 20472 Amesbury, MA 01913 George Dana Bisbee, Es q .

Jane Doughty Stephen E. Me r r ill, Esq.

SAPL Of fice of the Attorney General 5 Market Street State House Annex Portsmouth, NH 03801 Concord, NH 03301 l

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Ca rol S . Sneider, Esquire Allen Lampert Assistant At torney General Civil Defense Director Department of the Attorney General Town of Br entowood 1 Ashburten Place,19th Floor Exeter, NH 03833 Boston, MA 02108 Richard A. Harpe, Esq.

Stanley W. Knowles Hampe and McNicholas Board of Selectmen 35 Pleasant Street P.O. Box 710 Concord, NH 03301 Nor th Hamp ton, NH 03826 Gary W. Ho lme s , Esq.

J.P. Na de a u , Se lectma n Holmes & Ellis Town of Rye 47 Winnacunnent Road 155 Washington Road Hampton, NH 03842 Rye, New Hampshire 03870 William Armstrong Richard E. Sullivan, Mayor Civil Defense Director l City Hall 10 Fr ont St reet i Newburyport, MA 01950 Exeter, NH 03833 l

Alfred V. Sa rgent, Chairman Calvin A. Ca nney Board of Selectmen City Manager Town of Salisbury, MA 01950 City Hall 126 Daniel Street Senator Gordon J. Hump hrey Portsmouth, NH 03801 U.S. Se na te Washington, D.C. 20510 Matthew T. Br ock , Esq.

(Attn. Tom Burack) Shaines & McEachern P.O. Bo x 3 6 0 Selectmen of Northampton Maplewood Ave. -

No r thamp ton, New Hampshire 03826 Portsmouth, NH 03801 Senator Gordon J. Hump h rey Edward A ." Thomas 1 Pillsbury Street Federal Emergency Management l Concord, NH 03301 i Agency

• 4 4 2 J. W. McCo rmack ( POCH)

Michael Santosuosso, Ch airman Boston, MA- 02109 Board of Selectmen

• Jewell Street, RFD # 2 Sandra Gavutis South Hampton, NH 03842 Town of Kensington RFD 1 Box 1154-Judith H. Mizner, Es q . East Kensingtoh, NH 03827 Silverglate, Ge r tner, et al.

• 88 Broad Street -

Boston, MA 02110 Diane Curran

• Dy hand

• By Federal Express

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