ML20207M112
| ML20207M112 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/06/1987 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2132 OL, NUDOCS 8701130090 | |
| Download: ML20207M112 (12) | |
Text
2 /.3 A DOCKETED UPlFC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 Jrs -7 P4 :25 BEFORE THE ATOMIC FAFETY AND LICENSING APPEAL BOARD ~
In the Matter of
)
~
PUBLIC SERVICE COMPANY OF
)
50-OL NEW HAMPSIIIRE, et al.
)
""" "I (Seabrook Station, Units 1 and 2 NRC STAFF'S RESPONSE TO INTERVENORS' JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDINGS Sherwin E. Turk Senior Supervisory Trial Attorney 9
January 6,1987 1
8701130090 870106 3
PDR ADOCK 0500 1)So7
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC FAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-443 OL PUBLIC SFEVICE COMPANY OF
)
50-444 OL 11EW HAMPSIIIRE, et al.
)
)
Off-Site Emergency Planning (Seabrook Statian, Units 1 and 2
)
i NRC STAFF'S RESPONSE TO INTERVENORS' JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDINGS I
l l
l l
l Sherwin E. Turk Senior Supervisory-Trial Attorney l,
January 6,1987 1
D UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443 OL NEIT HAF1PSHIRE, et _al.
)
50-444 OL (Scabrook Station, Units 1 and 2)
)
Offsite Emergency Planning NRC STAFF'S RESPONSE TO INTERVENORS' JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDINGS On December 30, 1986, Massachusetts Attorney General Francis X.
Bellotti filed a motion on behalf of the Commonwealth of Massachusetts, Town of Hampton, Seacoast Anti-Pollution League, Town of Amesbury, l
and New England Coalition on Nuclear Pollution ("Intervenors"), in which s
they requested "an immediate stay of cll proceedings and events leading to commencement of hearing on the New Hampshire Radiological Emergency Response Plan" (hereinafter " Mass AG", at 1).
The Mass AG noted that i
the Intervenors had initially filed a motion for stay with both the i
Licensing Board and the Commission on December 22, 1986
(" Initial Motion", Mass AG Exh. I),
which the Commission delegated to the Appeal Board. by Order of December 24, 1986 (Mass AG Exh. 3).
The 1
-1/
The Intervenors' filing of their motion simultaneously with both the Licensing Board and the Commission is improper under 10 C.F.R.
II2.730(a) and
- 2. 788(f), and has been criticized by the Chief Administrative Judge of the Licensing Board Panel.
" Memorandum and Order", dated December 31, 1986, at 3-4.
Mass AG further noted that the Licensing Board has not yet taken any action on the initial request for stay.
The NRC ' Staff hereby responds to the Intervenors' motions for a stay of Licensing Board proceedings.
For the reasons set forth below, the Staff opposes the motions and recommends that they be denied.
DISCUSSION Pursuant to 10 C.F.R.
52.788(e), an application for a stay of a Licensing Board order is to be considered in light of the following criteria:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; i
(3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.
The Intervenors' motions do not address these factors, other than to assert generally that they will be harmed by having to litigate the NHRERP and Applicants' petition simultaneously, and that this would deprive them of a " fair hearing". They altogether fail to demonstrate any f
likelihood that they will succeed on the merits of an appeal from the Board's scheduling orders, b nor do they discuss whether the granting of a stay would harm other parties, or where the public interest lies.
l l
2/
The Intervenors have not yet filed any appeals from the Licensing l
Board's orders, but have filed a series of separate " objections" and motions for reconsideration of the Board's scheduling orders, all of which were directed to the Licensing Board.
1 l
l
Further, the Intervenors have not even asserted that the harm they will suffer constitutes " irreparable injury", nor have they asserted that appellate review following the issuance of any Licensing Board decisions on the merits could not redress any harm caused by the scheduling orders.
Even in their allegations as to the harm which they would suffer in the absence of a stay, the Intervenors have failed to demonstrate that they will suffer irreparable injury, as is required by 10 C.F.R.
82.788(c).
In support of their stay request, the Intervenors noted that on December 4, 1986, the Licensing Board established a schedule for litigation of the NHRERP; that schedule, inter alia, contemplates e ruling on outstanding contentions by January 16,
- 1987, with hearings to commence on or about April 27,1987 (Mass AG, at 1-2; see Initial Motion, Exh. B).
The Intervenors complain that the hearing schedule established by the Board is, on its face, unreasonable and allows insufficient time for litigation of the numerous and complicated offsite emergency planning contentions which have already been admitted for litigation (Id.: see Initial Motion, at 2).
Further, the Intervenors note that on December 18, 1986, after the Board had adopted its schedule, the Applicants filed a petition under 10 l
C.F.R.
852.758 and 50.47(c) to set aside the regulations requiring a ten-mile plume exposure pathway EPZ, and that the EPZ be reduced to one mile for the Seabrook facility (Mass AG, at 2; Initial Motion, at 3).
The Intervenors observe that the Applicants' petition raises novel and highly technical issues which " jeopardizes emergency planning protection for EPZ towns located more than one (1) mile from Seabrook Station," and
that the Applicants' petition requires Intervenors' " full and immediate attention" (Initial Alotion, at 3).
The Intervenors further note that the Applicants' petition "would render moot the NHRERP as presently drafted, for a ten (10) mile EPZ" and " renders the present NHRERP, which is premised on a ten (10) mile EPZ, no longer operative" (Id.).
- Further, the Intervenors note that on December 23, 1986, the Licensing Board entered an order that responses to Applicants' petition be filed by January 27, 1987 (Rlass AG Exh. 2), which the Intervenors complain
" renders the concurrent litigation of New Hampshire plans even more unreasonable" (Blcss AG, at 2).
I'inally, the Intervenors assert that their resources are " severely strained" and that they cannot simultaneously litigate the Applicants' petition and the NHRERP (Initial Blotion, at 3); that " judicial economy" and " fundamental fairness" require that the Applicants' petition to reduce the EPZ be " fully litigated", and "the merits fhially determined", before litigation of the NHRERP is allowed to commence (Id.); and that unless a stay of the NHRERP proceedings is granted, they will be denied "a fair i
hearing as provided by law" (Id., at 4).
In our view, these statements by the Intervenors fail to demonstrate that a stay of Licensing Board proceedings on the NHRERP is warranted under the criteria set forth in 10 C.F.R. 52. 788(e). In this regard, we note that five motions for reconsideration of the Board's order of December 23, 10E6, are now pending before the Licensing Board (four f!Ied by the Intervenors and one filed by the Staff); in addition, a stay request remains pending before the Licensing Board, filed by the Inter-
4-,
venors simultaneously with the filing of the instant stay request. 3_/
It is possible that the Licensing Board will grant one or more of the motions for reconsideration pending before it, and provide substantial additional time for the filing of responses to Applicants' petition. While such action by the Licensing Board would not remedy all of Intervenors' concerns, it would serve to alleviate the strain on Intervenors' (and other parties')
resources. O Further, if the Licensing Board denies the stay request now pending before it, the Intervenors could still attempt to file an inter-locutory appeal from such action, in order to obtain whatever further
~3/
As indicated in n.1, supra, the Intervenors' simultaneous filing of stay requests with the Commission and the Licensing Board is improper under 10 C.F.R.
52.788(f).
That regulation provides as follows:
An application to the Commission for a stay of a
~
decision or action by an Atomic Safety and Licensing Appeal Board will be denied if a stay was not, but could have been, sought before the Appeal Board.
An application for a stay of a decision or action of a presiding officer may be filed before either the Atomic Safety and Licensing Appeal Board or the presiding officer, but not both at the same time.
-4/
The Staff notes that the schedule adopted by the Board for the litigation of the NIIRERP is slightly more compressed, by about six weeks, than the schedule suggested by the Staff.
While that schedule is more compressed than we had recommended, we do not believe that it deprives the Intervenors of a fair hearing on NHRERP issues.
We express no view, however, as to whether litigation of the NHRERP under the Board's schedule and the concurrent litigation of the Applicants' petition would deprive the Intervenors of a fair hearing, because we have concluded that the instant stay requests should be denied while the stay request and motions for reconsideration remain pending before the Licensing Board.
Nonetheless, we reserve the right to address this question in response to any future stay requests or appeals that may be filed by the Intervenors.
relief they may feel they require. 5_/
However, in the absence of any current demonstration of "irrepcreble injury", prior to any ruling by the Licensing Board on either the stay request or the motions for recon-sideration which are now pending before that Board, the Staff submits that the Intervenors have failed to demonstrate the "irreparcble injury" required to be shown under 10 C.F.R. 52.788(e).
Further, it is well settled that "one who establishes no amount of irreparable injury is not entitled to a stay in the absence of a showing that a reversal of the decision under attack is not merely likely, but a virtual certainty." b The 'Intervenors' stay requests fail to demonstrate
=
that a reversal of the Licensing Board's scheduling orders "is not merely likely, but a virtual certainty."
In this regard, the Appeal Board has
-5/
The Intervenors' complaint that the Applicants' petition renders the NHRERP moot and renders litigation on those plans unnecessary is premature, in that it cannot yet be known whether the Applicants' petition will be granted; if the Applicants' petition is denied, the NHRERP would continue to be the " operative" plan for New Hampshire portions of the EPZ.
Further, while simultanceus litigation of both the NHRERP and the Applicants' petition (if such litigation is mandated) is likely to require substantial resources by all parties, in similar circumstances the Commission has ruled that " mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury. " Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984), quoted in Texas Utilities Generating Co.
(Comanche Peak Steam Electric Station,
Unit 1), Docket No. 50-445-CPA, " Memorandum and Order" dated December 19, 1986, at 3.
~6/
Lon ; Island Lighting Co. (Shoreham Huclear Power Station, Unit 1),
Dociet No. 50-322-OL-5 (EP Exercise), " Memorandum and Order" dated January 5,1987, at 2; Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), Docket No. 50-445-CPA,
" Memorandum and Order" dated December 19,
- 1986, at 3;
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 n.8 (1985).
I l
-7~
indicated that it normally will not consider an interlocutory appeal from a Licensing Board's scheduling orders, absent a
"truly exceptional situation. "
Virginia Electric & Power Co. (North Anna Power Station, Units 1 and 2), ALAD-584, 11 NRC 451, 467 (1980).
Similarly, it has been stated that interlocutory review of a scheduling order will not be undertaken in the absence of a denial of due process or the threat of immediate and serious irreparable harm.
Ilouston Lighting and Power Co.
(South Texas Project, Units 1 and 2), ALAD-637, 13 NRC 637 (1981);
Consumers Power Co.
(Midland Plant,
Units 1
a 2),
ALAB-344, 4 NRC 207, 209 (1976).
In light of these decisions, and given the inchoate status of the stay request and motions for reconsideration currently pending before the Licensing Board, the Staff believes that it le unclear that the Appeal Board would even consider an appeal from the Licensing Board's scheduling orders, much less that a reversal of those orders is "a virtual certainty."
In sum, the Intervenors have failed to demonstrate the likelihood of their succese on the merits or that they will suffer irreparable harm, and they have altogether failed to address the harm which may result to other parties or where the public interest lies.
For these reasons, as more fully set forth above, the Intervenors' stay requests should be denied by the Appeal Board at this time.
Q
. ~..
~
CONCLUSION For the reasons set forth above, the Staff submits that the Mass AG and Intervenors' stay requests should be denied by the Appeal Board.
Respectfully submitted, ub Q Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, P.laryland this 6th day of January,1987 l
l i
i 4
i
e 00(.KETED 8
umEC UNITED STATES OF AMERICA
'87 JAN -7 P4 :25 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEALkbARD In the Matter of
)
)
Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW HAMPSHIRE, y al.
)
Off-site Emergency Planning
)
(Seabrook Station, Unita 1 and 2
)
CERTIFICATE OF SERVICE 4
I hereby certify that copies of "NRC STAFF'S RESPONSE TO INTERVENORS' JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDING" 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, by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by double asterisks, by express mail, this 6th day of January,1987.
Helen 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, DC 20555 Washington, DC 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, DC 20555 Boston, MA 02108 Beverly Hollingworth Richard A. Hampe, Esq.
l 209 Winnacunnet Road New Hampshire Civil Defense Agency Hempton, NH 03842 107 Pleasant Street Concord, NH 03301 Sandra Gavutis, Chairman CaMn A. Canney, City Mensger Board of Selectmen City IIall RFD 1 Box 1154 126' Daniel Street Kensington, NIT 03827 Portsmouth, NH 03801 4
o Stephen E. Merrill Paul' McEachern, Esq.**
Attorney Ceneral Matthew T. Brock, Esq.
George Dana Bisbee Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Office of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear Angie Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls 25 High Road Drinkwater Road Newbury, MA 09150 Hampton FaHs, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq.
Robert A. Backus, Esq.
McKay, Murphy and Graham Backus, Meyer & Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.
Philip Ahren, Esq.
Harmon a Weise Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 i
Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr., Esq.**
Federal Emergency Management Agency Ropes a Gray 442 J.W. McCormack (POCH) 225 Franklin Street Doston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq.
William Armstrong Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter 500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel
- Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 0
e 3 Jane Doughty Docketing and Service Section*
Seacoast Anti-Pollution League Office of the Secretary 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555 Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 Plichael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, NH 03287 Newburyport, MF 09150 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.
Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street North Hampton, NH 03862 Boston, MA 02110 R. K. Gad III, Esq.
Mrs. Anne E. Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq.
Holmes & Ellis 47 Winnacunnet Road Hampton, NH 03842 Sherwin E. Turk Senior '2upervisory Trial Attorney O
. _, _ _ - -. _,. _, ~ _, - _ _., _ _ _. _ ~,
. -.. -,,