ML20207N792
| ML20207N792 | |
| 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-#187-2181 OL, NUDOCS 8701140426 | |
| Download: ML20207N792 (16) | |
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i-00CKETED USNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cri' LCL before the ATOMIC SAFETY AND LICENSING APPEAL 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-CL NEW HAMPSHIRE, et al.
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50-444-OL
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(Seabrook Station, Units 1 and 2)
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(Offsite Emergency Planning
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Issues)
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APPLICANTS' RESPONSE TO "INTERVENORS' JOINT MOTION FOR IMMEDIATE STAY OF ASLB PROCEEDINGS" FILED DEC. 30. 1986 Backcround under date of December 22, 1986, Counsel for the Tcwn of Hampton in the auove-entitled proceeding filed, by mail, on behalf of the Town of Hampton, The Commonwealth of Massachusetts, Seacoast Anti-Pollution League, the Town of Anesbury, and the New England Coalition on Nuclear Pollution (all collectively hereinafter referred to as "Joir.t Movants"),
"Intervenors' Joint Motion for Immediate Stav of ASLB Proceedinos" (hereinafter referred to as the "First Motion").
The First Motion was filed before both the Atomic Safety and 5$bfh43 h
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Licensing Board presiding over tne above-captioned proceeding and the Commission.
The First Motion sought relief from the Atomic Safety and Licensing Board in the form of an order granting "an immediate stay of all proceedings and events leading to tne commencemen of hearings on t'1e New Hampshire Radiological Emergency Response Plan."
First Motion at 1.
The "proceecings and events" referred tc in the First Motion are the currently ongoing adjudicatory proceedings before the Licensing Board sitting in the above-captioned matter which are being held to adjudicate contentions made with respect to the State of New Hampshire's Radiological Emergency Response slan (NHREPP).
(These proceedings will be hereinafter referred to as "NHRERP Proceedings").
The basic thrust of the First Motion was that a halt in these currently ongoing proceedings pursuant to a scheduling order issued by the Licensing Board on December 4, 1986 was necessitated by the fact that on December 18, 1986 the Applicants herein had filed "Acolicants' Petition Under 10 CFR 2.758 and 10 CFR 50.47(c) with Respect to the Reaulations Reouirino Plannino for a Plume Exposure Pathway Emercency Pl annino 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 2
so much of the Commission's Regulatiens as require planning for a Plume Exposure Emergency Planning Zene (FEPZ) for Seabrook Station in excess of an area one mile in radius.
Acolicants' 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 dces not constitute a significant deficiency for Seabrook Station and that there exist other ccmpelling reasons to permit the operation of the facility.
Id. at 2-3.
The argument presented in the First Motion was, in essence, twofold.
First, it was argued that judicial economy dictated the stay because the allowance of the Applicants' Petition would make the NHRERP Proceedings moot.
First Motion at 3 paras.
6-8.
Second, it was argued that the conduct of proceedings on the Applicants' Petition and the NHRERP Proceedings in parallel would unduly strain the rescuces of t
the Joint Movants and thus deny them "a fair hearing as l
provided by law."
First Motion at 3-4 paras. 9-10.
Insofar as the First Motion was addressed to the Commission, it sought to have the Commission direct the I
Licensing Board, pursuant to 10 CFR 2. 718 (i ), "to certify to I
the Commission the question of the immediate stay raised herein, and to grant an immediate stay as requested."
First 3
Motion at 4 para. 11.
It was equestec that the Commission grant this relief eitner in the event the Licensing Board denied the First Motion or " fail [ed] to act on said request prior to December 29, 1986." id.
Beyond the argumerts summarized above, the Joint
.Movants made no attempt to address the four factors originally articulated in the so-called Viroinia Fetroleum Jobbers case and set forth in 10 CFR 2.738, the regulaticn which ordinarily governs the granting of stays of actions or orders of NRC adjadicatory tribunals.
Nor, despite their demand for action on a stay request to be taken five days after the date on which it was filed, did they request either tribunal before which it was filed to order that responses to the motion be filed in a period of less than the ten days allowed by both 10 CFR 2.788(d) and 10 CFR 2.730(c) (if 10 CFR 2.788 is not deemed to be controlling).
Actually, inasmuch as at least in the case of the Applicants the service of the First Motion was by regular mail, the time for responding was a total of 15 days unless shortened by an order of some nature.
10 CFR 2.710.
On December 23, 1986, the day following the filing by mail of the First Motien the Licensing Board, acting pursuant to 10 CFR 2.758(b), telephonically advised of it. issuance of an order directing that responses to the Appplicants' Petition 4
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be filed by January 27, 1987.
On December 24, 1986, the Acting Secretary of the Commission apparently having ceen served the First Motion by some method more rapid than that accorded the Licensing Board or Appli: ants (the certificate of service gives no indication that anyone was served other than by regular first class mail) issued, ptirsuant to the authority delegated to him under 10 CFR 2.772 an Orcer which, inter alia, noted that " Commission autho-ity under 10 CFR 2.71G (1) has been delegated to the Atomic Safety and Licensing Appeal Board" under 10 CFR 2.785 and ruled that insofar as the Joint Movants desired to seek elief under 10 CFR 2.718(i) "any such motion Intervenors may wish to file should be filed directly with the Appeal Board."
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2r Dkt. Nos 50-443-OL, 50-444-OL (Off-site Emergency Planning Issues), unpublished order (Dec. 24, 1986).
On December 30, 1986 (one day after the deadline of December 29, 1986) the Attorney General of The Commonwealth of Massachusetts on behalf of the Joint Movants filed bef ore this Appeal Board another motion entitled "Intervenors' Joint Motion for Immediate Stav of ASLB Proceedinos."
This is the motion at bar, and will, for purposes of clarity, be referred to herein as the "Second Motion."
The Second Motion, after naming the Joint Movants 5
and requesting this Appeal Board to " order an immediate stay of Ctne NHRERP Proceedings 3",
Second Motion, at 1,
proceeds as follows:
In six numbered paragraphs the procedural history outlined above is described. Id. at 1-3.
This description is embellished with comments that the schedule set by the Licensing Board for the NHRERP Proceedings is " unreasonable" and that the Licensing Board order under 10 CFR 2.758 calling for responses to the Apolicants' Petition " renders the concurrent litigation of the ENHRERP Proceedings 3 even more unreasonable."
Id.
Paras.
1, 4
The Second Motion also recites that it incorporates by reference the First Motion and that: "Ea3 stay is warranted as a matter of logic, judicial economy, and fundamental fairness for all the reasons set forth in Ethe First Motion 3."
The above-described comments and recitations constitute the entire argument in favor of the motion made to this Appeal Board.
No attempt is made to address the criteria for directed certification.
No attempt is made to address the four Viroinia Petroleum Jobbers factors set forth in 10 CFR 788.
In any event n the basis of the above-described pleading, this Appea' card is requested "to certify the question of the imme 2.ce stay of Ethe NHRERP Proceedings].'
It is in the foregoing posture that this matter comes before this Appeal Board.
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ARGUMENT I.
The Motion is Procedurally Inadeouate A.
The Criteria For Directed Certification Are Not Met As noted above, the proponents of the Second Motien have made no attempt to demonstrate that their case is one whi-h satisfies the various criteria for directed certification.
When the remedy of directed certification was first recognized in NRC jurisprudence; the standard for the grant of the remedy was articulatec as being that a party must at a minimum establish that a referral under 10 CFR 2.730(f) would have been proper, i.e.,
that failing a resolution of the problem the public interest will suffer or unusual delay or expense will be encountered.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-271, 1 NRC 478, 483 (1975).
Subsequently the criteria were articulated as follows:
"Almost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be i
alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner."
Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station), ALAB-405, 5 NRC l
1190, 1192 (1977).
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i We are wholly unadvised as to the reasons the Joint Movants feel that they meet these criteria.
We confess to an inability on our own to think of any solid reason why they do.
The only impact that is even vaguely articulated in the two motions is the possible impact of having to engage in litigation (in the NHRERP Proceedings) which may prove to be unnecessary at a later time if the Applicants' Petition is eventually granted.
The fact that the alleged grievance complained of may lead to increased litigation expense is not a controlling consideration in favor of interlocutory review.
- See, e.o.,
Cleveland Electric Illuminatino Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1113-14 (1982); Pennsylvania Power & Licht Co.
(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NRC 550, 552 (1981).
In fact what is involved here is a scheduling disagreement.
It has long been the policy of the Appeal Boards that directed certification is not granted in order
- 3 review scheduling matters as to which the Licensing Boards are deemed to have wide discretion.
E.o.,
Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-541, 9 NRC 436, 437-38 (1979) and cases there cited; Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), ALAB-602, 12 NRC 28, n.1 (App.
P.
Ch. Rosenthal, 1980).
The motion insofar as it seeks relief pursuant to this Appeal Board's directed 8
certification jurisdiction should be denied.
B.
The Motion is Inadecuate Under 10 CFR 2.788 Neither the First nor the Second Motion address the so-called Virainia 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 Appeal Board's jurisdiction to act on this matter.
Presumably the Joint Movants are now foreclosed from arguing that they are entitled to the relief they seek under 10 CFR 2.788.
In any event, as demonstrated below, had they attempted to undertake a 10 CFR 2.788 analysis, the attempt would have availed them nothing.
The only argument made in support of the Second (and the First) Motions 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 l
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 necesssarily expended in the l
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absence of a stay are not enough." Toledo Edison Co.
(Davis-Besse Nuclear Power Sattion, Units 1,
2 and 3), ALAB-385, 5 NRC-621, 628 (1977).
When 10 CFR 2.788 is invoked (if, indeed, it has been nere), when there is no demonstration of legally cognizable irreparable injury, then there must be a demonstration that reversal of the decision under attack (i.e.
here apparently the decisien of the Licensing Board not to act in five days to grant the stav requested or, one could argue (with some difficulty, we submit) the sub silentio denial of the relief sought) is not merely likely, but a virtual certainty.
Clevel and Electric Illuminatino Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 N.8 (1985).
Assuming that that decision is under attack at tnis time on the basis of the sparse filing made, its reversal is hardly a certainty for the reasons set forth in Part II hereof, and also because the basic matter complained of is committed to the Licensing Board's discretion and an abuse of such discretion is difficult to show.
Looking briefly at the othe-f actors enumerated in 10 CFR 2.788, there is no doubt that a substantial public i
interest will be served by getting the completed Seabrook Sation on the line and producing power at the earliest date l
consistent with resolution of all legitimate safety questions.
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e The course the Licensing Board is following so far will best accomplish that purpose.
It is permitting the Applicar.ts to go forward on alternative fronts on this matter.
There is no reason to force the Applicant to bet on which route is tne fastest and give up the other, at least there is no legitimate public interest in doing so.
For these same reasons the grant of the stay sought will harm the Apolicants.
The Applicants have been forced by The Commonwealtn of Massachusetts into a position where they must seek relief of the nature requested in the Applicants' Petition.
There remains the hope that the Commenwealth will decide to engage in the necessary planning in which case the usual route to a license will be reopened and the NHRERP Proceedings will not be mooted.
Moreover even assuming that the Applicants are forced to rely soley on the Applicants' Petition route, the NHRERP Proceedings still have vitality to assure that the NHRERP is adequate to handle the smaller PEPZ of one mile radius.
II. The Motion Should Fail on The Merits It is settled that even where an application for directed certification is procedurally infirm, as we believe this one to be, the opponents thereof are required to address I
the merits thereof. Viroinia Electric Power Co. (North Anna 11 i
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Power Station, Units 1 and 2) ALAB-741, 18 NRC 371, 374 n.3 (1983); Public Service Cor..carv of New HamDshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11, 14 n.A (1983).
In Part I.B.
hereof where we add essed the Motions under the 10 CFR 2.788 criteria we have set forth why the relief sought should not be granted on the merits.
There simply is no cognizable irreparable harm to the Joint Movants demonstrated in these filings.
In addit.an to the claim of unnecessary litigation, which, as demonstrated earlier, is not legally " irreparable harm" the only other harm alleged is in the form of the plaint contained in the First Motion that the course of action being followed by the Licensing Board is harmful to the Joint Movants because of alleged " severely strained resources."
First 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.
Especially is this no when one of the complaining j
parties is a sovereign state of the United States with all tne resources of such an entity available to it.
l Against this, this Appeal Board should weigh the fact that an essentially completed nuclear power facility which has already been granted an Operating License to engage in sub-criticality testing is being held up by one of the complainants before it (The Commonwealth of Massachusetts) not l
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from getting the operating 11cu7se it seeks, but from even having "its day in court" to see whether the many loudly proclaimed but so far unproven allegations as to the alleged impossibility of engaging in adequate emergency planning are in fact true.
Moreover, the particular Complainant causing the difficulty is not the host state, but is, rather, a bordering state. If ever a case screamed for a tribunal sitting in Equity to deny a stay this is it.
CONCLUSION The motion should be denied.
Respectfully submitted,
- 'y Tho' mas'BCPUignan, Jr.
R.
K.
Gad III Kathryn A.
Selleck Ropes & Gray I
225 Franklin Street Boston, MA 02110 (617) 423-6100 l
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Counsel for Applicants i
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- a DOLKETL1
'J S N C CERTIFICATE OF SERVICE I,
Thomas G.
- Dignan, Jr., one of the attorneys for kbeU 1
Applicants herein, hereby certify that on January 6, 1987, I made service of the within document by mailing copies gg n.. n 2
e thereof Federal ~ Express to those marked with an asteris4C6LDE A / "'l U"mC H otherwise first class mail, postage prepaid, to:
- Alan S.
Rosenthal, Chairman
- Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 Fast West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814
- Gary J.
Edles Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S. Nuclear Regulatory Office and Court House Commission Post Office Square East West Towers Building Boston, MA 02109 4350 East West Highway Bethesda, MD 20814 Helen Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Board Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 Washington, DC 20555 Dr. Emmeth A.
Luebke
- Diane Curran, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Suite 430 Commission Washington, DC 20009 Washington, DC 20555 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S.
Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 1
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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 Washington, DC 20555 Commission Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814 Atomic Safety and Licensing
- Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 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 Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street 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 S. Matthews One Eagle Square Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 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 l
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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 Judith H. Mizner, Esquire Charles P. Graham, Esquire Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110
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