ML20207N609
| ML20207N609 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/08/1987 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2180 OL, NUDOCS 8701140315 | |
| Download: ML20207N609 (9) | |
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f DOCKETED UWRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 JAH 12 P2 :15 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD --
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL NEW IIAMPSHIRE, et._al.
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50-444 OL (Seabrook Station, Units 1 and 2)
)
Offsite Emergency Planning URC STAFF'S RESPONSE TO INTERVENORS' INITIAL JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDINGS On December 22, 1986, the Commonwealth of Massachusetts, Town of Hampton, Sescoast Anti-Pollution League, Town of Amesbury, and New England Coalition on Nuclear Pollution ("Intervenors"), filed a joint motion before the Licensing Board and Commission, I seeking an immediate stay of Licensing Board proceedings on the New Hampshire Radiological c
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The Intervenors' filing of their motion simultaneously with both the Licensing Board and the Commission was improper under 10 C.F.R.
II2.730(a) and 2.788(f).
On December 24, 1086, the Commission I
delegated its consideration of the motion to the Appeal Board; and on December 31, 1986, the Appeal Board directed that responses to the stay motion be filed by Applicants and Staff in time to be received by the Appeal Board and movants by January 7,1987.
In accordance with that Order, the Staff filed its response before the Appeal Board, opposing the stay request, on January 6,
1987.
"NRC Staff's Response to Intervenors' Joint Motion for Immediate Stay of ASLB Proceedings,"
dated January G,
1987
(" Staff Response").
8701140315 870108 PDR ADOOK 05000443 g
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Therein, the Intervenors Emergency Response Plan (NHRERP).
requested "an immediate stay of all proceedings and events leading to commencement of hearing on the [NIIRERP]" (Initial Motion, at 1).
The NRC Staff hereby responds to the Intervenors' initial motion for a stay of Licensing Board proceedings.
For the reasons set forth below, the Staff opposes the motion and recommends that it be denied.
DISCUSSION In support of their stay request, the Intervenors assert that the Licensing Board's December 4, 1986, order adopting a schedule for liti-gation of the NHRERP is unreasonable and allows insufficient time for litigation of the numerous and complicated offsite emergency planning contentions which requires a substantial allocation of their resources (Initial Motion, at 2-3).
Further, the Intervenors note that on December 18, 1986, the Appli-cants filed a petition under 10 C.F.R. 552.758 and 50.47(c) to set aside the regulations requiring a ten-mile plume exposure pathway EPZ, and that tne EPZ he reduced to one mile for the Seabrook facility (Id., 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 petition requires Intervenors' " full and immediate attention" (Id.).
The Intervenors further note that the Applicants' petition "would 1
2/
"Intervenors' Joint Motion for Immediate Stay of ASLB Proceedings,"
dated December 22, 1986 (" Initial Motion").
On December 30, 1986, the Intervenors filed a further stay motion before the Appeal Board, after the Commission had delegated its consideration of the Initial Motion to the Appeal Board.
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I 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.).
Finally, the Intervenors assert that their resources are " severely strained" and that they cannot simultaneously litigato the Applicants' petition and the NHRERP (Id.); that " judicial economy" and " fundamental fairness" require that the Annlicants' petition to reduce the EPZ be " fully litigated", and "the merits finally determined", before litigation of the NIIRERP is allowed to commence (Id.); and that unless a stay of the NIIRERP proceedings is granted, they will be denied "a fair hearing as provided by law" (Id., at ().
In our view, these statements by the Intervenors fail to demon-
-strate that a stay of Licensing Board proceedings on the NHRERP is warranted. Pursuant to 10 C.F.R. 52.788(e), an application for a stay of a Licensing Board decision or action must 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; I
(2) Whether the party will be irreparably injured l
unless a stay is granted;
.(3) Whether the granting of a stay would harm other l
parties; and (4) Where the public interest lies.
The Initial Motion does not address any of these factors other than the question of whether the Intervenors will be injured if a stay is not I
granted.
In our view, upon consideration of these factors, the Inter-venors' stay request should be denied.
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First, the. Intervenors fail to demonstrate any likelihood that they are likely to " prevail on the merits" with respect. to their claim that the schedule adopted by the Board is so compressed as to deprive them of a
" fair hearing." In this regard, we note that the schedule adopted by the Board is only slightly more compressed, by c about six weeks, than the schedule suggested by the Staff.
While our proposed schedule afforded slightly more time for discovery, summary disposition, and the filing of testimony, much of the difference between the Board's and our schedule is due to the Board's requirement that responsive pleadings be received by certain specified dates, which difference is largely eliminated by the use of express mail in place of first-class mail service. On balance, while we recognize that the schedule adopted by the Board is a tight one, we do not believe that it is so compressed as to deprive the Intervenors of a fair hearing on NHRERP issues. -
i Similarly, the Intervenors have not demonstrated a likelihood that they will " prevail on the merits" with respect to their claim that the 3/
Notwithstanding the above conclusion, we recognize that the Appli-cants' petition of December 18, 1986, will require the allocation of substantial additional resources beyond those required for litigation of NHRERP issues.
Further, we believe that the Board's Order of December 23, 1986, requiring responses to Applicants' petition by January 27, 1987, provides inadequate time for the filing of those responses.
- However, we also note that six motions for reconsideration of the Board's Order are now pending before the Board (five filed by Intervenors and one filed by the Staff).
Accordingly, pending Licensing Board action on the six outstanding motions for reconsideration, we express no view here as to whether litigation of the NHRERP under the Board's schedule and concurrent litigation of the Applicants' petition would deprive the Intervenors of a fair hearing.
We reserve the right to address this question, however, in response to any future stay requests or appeals that may be f!!ed by the Intervenors.
)
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Applicants' petition renders the NHRERP " moot" or no longer' operative, such that litigation of the NHRERP is unnecessary. Rather, the NHRERP is, and apparently will continue to be, the " operative" emergency plan for portions of the Seabrook EPZ within New Hampshire, until such time as the Applicants' petition may be granted by the Commission. At this time -- when the Staff and other parties have not yet provided their views of the petition, and the Licensing Board has not yet even determined whether the petition establishes a " prima facie" case as is required under 10 C.F.R. 2.758 - it is far too early to presume that the Commission will grant the petition. In addition, the Commission may order that further-proceedings be held on the petition, which could entail further documentary submissions, the filing of affidavits, or even evidentiary hearings. In sum, Commission approval of the petition may not occur for ' some time, during which period the NHRERP will continue to be the " operative" emergency plan for New Hampshire.
Secondly, with respect to the Intervenors' allegations of " harm",
they have failed to demonstrate that they will suffer " irreparable injury" if a stay is not granted, as required by 10 C.F.R. I 2.788(e).
In this regard, we note that the Licensing Board may still grant one or more of the six ' outstanding motions for reconsideration of the Board's order requiring responses to Applicants' petition to be filed by January 27, 1987, and provide additional time for the filing of those responses.
If the Board does so, that action could serve to alleviate much of the strain on Intervenors' resources, and eliminate much of the " harm" that would
a
, o otherwise be incurred by Intervenors. O At this time, however, the Intervenors have failed to demonstrate the " irreparable injury" required to be shown under 10 C.F.F. 52.788(e).
In sum, the Intervenors have failed to demonstrate the likelihood that they will preycil 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 request should be denied.
CONCLUSION For the reasons set forth above, the Staff submits that the Inter-venors' stay request should be denied.
Respectfully submitted, b
Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 8th day of January,1987 l
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In this regard, we note that while simultaneous litigation of both the NHRERP and the Applicants' petition is likely to reouire the allo-cation of substantial resources by all parties, in another case 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),
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UNITED STATES OP AMERICA NUCLEAR REGULATORY COMMISSION
'87 JAN 12 P2 :17-BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD.
iiCC b e i i 6 ';a In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW IIAMPSHIRE, eM.
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Off-site Emergency Planning
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(Seabrook Station, Unita 1 and 2
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO INTERVENORS' INITIAL JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDINGS" 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 Comission's internal mail system, this 8th day of January,1987.
Helen Hoyt, Esq., Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Jud e F
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 Ashburtor. Flace,19th Floor Washington, DC 20555 Boston, MA 02108 Beverly Hollingworth Richard A. Hampe, Esq.
209 Winnacunnet Road New Hampshire Civil Defense Agency Hempton, NH,03842 107 Pleascnt Street Concord, NH 03301 Sandra Gavutis, Chairman Calvin A. Canney, City Mensger Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street Kensington, MIT 03827 Portsmouth, NH 03801
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...____r__m.__.'
l Stephen E. Merrill Paul' McEachern, Esq.**
i Attorney Ceneral Matthew T. Brock, Esq.
George Dana Bisbee Shaines a 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 Falls, 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 320 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq.
Robert A. Backus Esq.
McKay, Murphy and Graham Backus, Meyer a Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.
Philip Ahren, Esq.
Harmon a Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr., Esq.**
Tederal Emergency Management Agency Ropes a Gray 442 J.W. McCormack (POCH) 225 Franklin Street i
Boston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq.
William Armstrong Assistant General Counsel Civil Defense Director rederal 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
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Jane Doughty Docketing and Service Section*
Sencoast 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 Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, NH 03287 Newburyport, MN 09150 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.
Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good 4
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 Rosd Hampton, NH 03842 y
Sherwin E. Turk Senior Supervisory Trial Attorney P
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