ML20207N766

Applicant Response to Intervenor Joint Motion for Immediate Stay of ASLB Proceedings.* Motion Should Be Denied. Certificate of Svc Encl

ML20207N766
Person / Time
Site:	Seabrook
Issue date:	01/06/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2173 OL, NUDOCS 8701140409
Download: ML20207N766 (11)

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a DOCVETED U3NRC 1/6/87 UNITED STATES OF AMERICA '87 JAN 12 P2 :27 NUCLEAR REGULATORY COMMISSION .

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before the "

ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Ncs. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL

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(Seabrook Station, Units 1 and 2) ) (Offsite Emergency Planning

) Issues)

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APPLICANTS' RESPONSE TO "INTERVENORS' JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDINGS" Under date of December 22, 19S6, Counsel for the Town of Hampton in the above-entitled proceeding filed, by mail, on beha'If of the Town of bampton, The Commonwealth of Massachusetts, Seacoast Anti-Pollution League, the Town of Amesbury, and the New England Coalition on Nuclear Pollution (all collectively hereina d ter referred to as " Joint Movants"),

"Intervenors' Joint Motte :r Irmediate Stav of ASLB Proceedimos" (hereinafter referred to as the " Motion"). The Motion was filed before both this Atomic Safety and Licensing Board and the Commissicn.

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s The Motion seeks relief from tnis Board in the form of an order granting "an immediate stay of all prcceedings and 1 i

events leading to the commencement of hearings on the New l Hampshire Radiological Emergency Response Plan." Motion at 1.

The basic thrust of the Motion is that a halt in these currently ongoing proceedings is necessitated by the f act that on December 18, 1986 the Applicants herein filed "Acolicants' Petition Under 10 CFR 2.759 and 10 CFR 50.47(c) with Respect to the Reculations Reauirina Plannina f or a Plume Exposure Pathway Emeroency Plannino Zone in Excess of a One-mile Radius" (hereinafter referred to as " Applicants' Petition"). The Applicants' Petition seeks an exception or waiver under 10 CFR 2.758 from so much of the Commission's Regulations as require planning for a Plume Exposure Emergency Pl anning Zone (PEPZ) for Seabrook Station in excess of an area one mile in radius. Applicants' Petition at 2. In addition, the Applicants' Petition requests a determination under 10 CFR 50.47(c) that the lack of planning for a PEPZ in excess of one mile in radius around Seabrook Station does not constitute a j significant deficiency for Seabrook Staticn and that there exist other compelling reasons to permit the operation of the i

facility. Id. at 2-3.

The argument presented is, in essence, twofold.

l First, it is argued that judicial econony dictates the stay i

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a because the allowance of the Applicants' Petition would make the NHRERP Proceedings moot. Motion at 3 paras. 6-9.

Second, it is argued that the conduct of oroceedings on the Applicants' Petition and the NHRERP Proceedings in parallel would unduly strain the resources of the Joint Movants and thus deny them "a fair hearing as provided by law." Motion at 3-4 paras. 9-10.

Beyond the arguments summarized aoove, the Joint Movants make no attempt to address the four factors criginally articulated in the so-called Viroinia Petroleum Jcbbers case and set forth in 10 CFR 2.798, the regulation which ordinarily governs the granting of stays of actions or orders of NRC adjudicatory tribunals.

On December 23, 1986, the day following the filing by mail of the Motion, this Board, acting pursuant to 10 CFR 2.758(b), telephonically advised of its issuance of an order directing that responses to the Appplicants' Petition be filed by January 27. 1987.

On December 24, 1986, the Acting Secretary of the Commission apparently having been served the Motion by some method more rapid than that accorded this Board or Applicants (the certificate of service gives no indication that anyone was served other than by regular first class mail) issued, pursuant to the authority delegated to him under 10 CFR 2.772 3

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an Order which, inter alie, ncted that "Cemmission autnority under 10 CFR 2.718(t) has been delegated to the Atcmic Saf ety and Licens:ng Appeal Eoard" under 10 CFR 2.785 and ruled that insofar as the Joint Movants desired to seek relief under'101 CFR 2. 718 (i ) "any such motion Interve,crs may wish to file should be. filed directly with the Appeal Board." Sublic Service Companv of New Hampshire (Seabrook Station, Units 1 and 2) Dkt. Nos 50-443-OL, 50-444-OL (Off-site Emergency Planning Issues), unoublished order (Dec. 24, 1986).

On December 30, 1986 (cne day after the deadline of December 29, 1986) the Attorney General of The l

Commonwealth of Massachusetts on behalf of the Joint Movants filed before the Appeal Board another motion entitled "Intervenors' Joint Motion +cr Immediate Stay of ASLB Proceedinas. "As a result the notion here at bar may have been overtaken by events and be moot. Nevertheless we address it on its merits.

ARGUMENT The Motion dces not even address the so-called Virotnia Petroleum Jobbers factors as is contemplated by 10 CFR 2.788. Indeed, 10 CFR 2.788 is not even asserted as a basis for this Board's jurisdiction to act on this matter.

In any event, as demonstrated below, had the Joint Movants 4

g4 attempted to undertake a 10 CFR 2.78E analysis, the attempt would have availed trem nothing. The only argument made in support of the Motion is to the effect that the Joint Movants may have to engage in litigation (with its attendant expenses and tribulations) in the NHRERP Proceedings which may prove to be unnecessary. " Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury." Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-395, 5 NRC 772, 779 (1977) (emphasis added). Accord Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984). " Mere injuries, however substantial, in terms of money, time and energy necessnarily expendeo in the absence of a stay are not enough." Toledo Edison Co. (Davis-Besse Nuclear o ower Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 62e (1977).

When one seeks a stay of this nature, and there is no demonstration of legally ccgnizable irreparable injury, then there must be a demonstration that reversal of the decision under attack is not merely likely, but a virtual certainty.

Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 ano 2), ALAB-820, 22 NRC 743, 746 N.8 (1985).

Assuming that the decision under attack is this Board's decision to go forward on parallel fronts in this matter, its reversal is hardly a certainty if for no other reason than the 5

.s fact that the basic matter comclained of is committeo to this Board's discretion.

Looking briefly at the other factors enumerated in 10 CFR 2.788, there is ro doubt that a substantial public interest will be servec by getting the corpleted Seabrook Station on the line and producing pcwer at the earliest date consistent with resel; tion of all legitimate safety questions.

The. course the Licensicg Board is following so far will best accomplish that purpose. It is permitting the Applicants to go f orward on al ternative fronts on this matter. There is no reason to forca the Sc o ',1 c an t to bet on which route is the fastest and give up d a cther, at least there is no legitimate public interast in. doi g so. For these same reasons the grant of the st-, sought wi . 12rm the Applicar.ts. The Applicants have been forced by ine Commonwealth of Massachusetts into a position where they -

seek relief of the nature requested in the Applicants' P- 'cion. The e remains the hope that the Commenwealth will cec. a to engage in the necessary planning in which case the usua. .aute to e license will be reopened and the NHRERP Procce,. ,s will net be mooted. Moreover even assuming that the Aro :snts are forced to rely soley on the Applicants' Petition -

te, the NFRERP Proceedings still have vitality to assure that the NHRERP is adequate to handle the smaller PEPZ rf one .+ radius.

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In addition to the claim of unnecessary litigation, which, as denonstrated earlier, is not " irreparable harm" the only other harm alleged is in the form of the plaint contained in the Motion that the course of action being followed by this Board is harmful to the Joint Movants because of alleged " severely strained resources." Motion at 3 para. 9. This conclusory statement unbacked by any factual-showing, by affidavit or otherwise, should not be allowed to carry the day. Especi all y is this so when one of the complaining parties is a sovereign state of the United States with all the resources of such an entity available to it.

Against this, this Board should weigh the f act that an es=entially completed nuclear power facility which has already baen grantec tr. Operating License to engage in sub-criticality testino is being held up by one of the complainants befer: 4- (The Commonwealth of Massachusetts) not from getting the op=-ating license it seeks, but from even having "its day in c; et" to see whether the many loudly proclaimed but so far unt oven allegations as to the alleged inpossibility .i engaging in adequate emergency planning are in fact . rue. Moreover, the particular Complainant causing t is difficulty is not the host state, but is, rather, a border t :.g state. If ever a case screamed for a tribunal sit ting ir i luity to deny a stay this is it.

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CONC.LUS IGN i

The notien should ce der.ied.

Respectfully submitted,-

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] W Thomas G. Dignan, Jr.

R. K. Gad III Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Acolicants 4

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DOLMETED CERTIFICATE OF SERVICE CA*C I, Thomas G. Dignan, Jr., one of the attorneys for D lAN 12 P2 :27 Applicants herein, hereby certify that on January 6, 1987, I made service of the:within document by depositing _ copies thereof'with Federal Express, prepaid, for delivery to (ar2 .J  :' h r where indicated, by depositing in the United States maijoCKUp & J.~/M1 first class postage paid, addressed to): SANCd Administrative Judge Helen Hoyt, Robert Carrigg, Chairman Chairperson, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr. Emmeth A. Luebke Diane Curran, Esquire Atomic _ Safety and Licensing Andrea C. Ferster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.

East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda,_MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814

'* Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555 4

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-Philip Ahrens, Esquire Mr. J.P. Nadeau Assistant Attorney General- Selectmen's Office '

Department of the Attorney 10 Central Road

-General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General ~

Shaines & McEachern Department of the Attorney General' 25 Maplewood Avenue. One Ashburton Place, 19th Floor P.O. Box 360 Boston,'MA 02108 Portsmouth,' NH 03801 Mrs. Sandra Gavutis Chairman, Board of Selectmen

_Mr. Calvin A. Canney City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington,.NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950

• Senator Gordon J. Humphrey Mr. Peter J. Matthews One Eagle Square,- Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, M .A. 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office.of General Counsel RED Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301

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Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker, 442 John W. McCormack Post Fine, Good & Mizner Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 Charles P._ Graham, Esquire McKay, Murphy and Graham .

100 Main Street Amesbury, MA' 01913

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Tho g G. Dignan, Jr.

(*= Ordinary U.S. First Class Mail.)