ML20207P747
| ML20207P747 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/15/1987 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | MASSACHUSETTS, COMMONWEALTH OF |
| References | |
| CON-#187-2188 ALAB-858, OL, NUDOCS 8701200158 | |
| Download: ML20207P747 (9) | |
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. DOCKETED USNRC UNITED' STATES'OF AMERICA.
. NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD CFFFrn~ crc
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- Administrative' Judges:
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. Alan.S. Rosenthal, Chairman January 15,: 1987
. Gary J. Edles (ALAB-858)
'Howard A. Wilber
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SERVED JAN 161987 In the Matter of
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PUBLIC SERVICE: COMPANY Docket-Nos. 50-443-OL OF NEW HAMPSHIRE, ET Au.
50-444-OL
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(Seabrook. Station, Units 1
) (Offsite Emergency Planning).
and 2)
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Donald S. Bronstein and Carol S. Sneider, Boston Massachusetts, for in;ervenors Francis X. Bellotti, Attorney General of the Commonwealth of Massachusetts, et al.
Thomas G. Dignan,-Jr., R. K. Gad, III, and Kathryn A.
g Selleck, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.
Sherwin E. Turk for the Nuclear Regulatory Commissicn staff.
MEMORANDUM AND ORDER
[
We have before us a motion filed by Massachusetts Attorney General Francis X. Dellotti on behalf of the 4
Commonwealth, the Towns of Hampton, New Hampshire and Amesbury, Massachusetts, the Seacoast Anti-Pollution League, and the New England Coalition on Nuclear Pollution l
(intervenors), seeking an immediate stay of all proceedings leading to hearings on the New Hampshire Radiological Emergency Response Plan in this operating license PDR ADOCK 05000443 G
_,__~ -. _ _ _
2 proceeding.1 The motion is similar to one filed earlier with the Licensing Board but contains a request that we direct that Board to certify the stay question to-us for decision.
The applicants and the NRC staff oppose the motion.
Because both motions were directed to the timing of proceedings before the Licensing Board, we deferred our consideration temporarily to accord that Board an opportunity to address the request filed with it.2 Although the Licensing Board has not explicitly acted on the intervenors' request, it has now issued an order deferring prehearing activity for about a month and thus effectively granting the request in part.
For the reasons that follow, we deny the intervenors' motion without prejudice to submittal of'a new. request if future developments warrant.
A.
On December 4, 1986, the Licensing Board issued an order establishing the schedule for litigation of the New Hampshire plan.
The Board announced its intent to rule on pending contentions by January 16, 1987.
Discovery would See Intervenors' Joint Motion for Immediate Stay of ASLB Proceedings (December 30, 1986) (hereafter, Intervenors' Motion).
2 Appeal Board Order of January 8, 1987 (unpublished).
3 Licensing Board Memorandum and Order of January 9, 1987 (unpublished).
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follow and hearings were scheduled to commence on or after April 27, 1987.
On December 18, however, the' applicants filed a petition pursuant'to 10 CFR 2.758 and 50.47(c) requesting-4 that the 10-mile plume exposure pathway emergency planning
- zone (EPZ) for the Seabrook Station-be reduced to one mile.4 And, on December 23, the Board directed that responses to thefapplicants' petition be submitted by January 27, 1987.
After the submission of the petition but1before the scheduling of responses to it, the intervenors filed simultaneous requests with the Commission and the. Licensing
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Board seeking to stay all proceedings on the New Hampshire plan. 'The request filed with the Commission was rejected by the NRC's Secretary, who advised the intervenors to file any such request with us.
They~did so on December 30.5 They 4 Commission regulations designate two regions to be used for emergency planning purposes.
One is the " plume exposure pathway emergency planning zone," often referred to as the " plume EPZ" or "EPZ."
This is the geographic area surrounding-the plant in which the risk of exposure of members of the public to radioactivity would be greatest in-the event of an accident.
Various actions to protect the public must be developed'for the EPZ.
Ordinarily, the EPZ has a radius of aboutJ10 miles but its exact size and configuration may vary depending cn1 demography, topography, or-local emergency response needs and capabilities.
See 10 CFR 50.47 (b) (10), and (c) (2).
5 At about the same time, most of the intervenors filed with the Licensing Board requests that it reconsider its directive that responses to the applicants' petition be (Footnote Continued)
4 assert, among other things, that the hearing schedule allows insufficient time to prepare for litigation on the plan.
They point out, in addition, that action on the applicants' pending petition could render the current New Hampshire plan moot.
Further, they claim that the simultaneous litigation of the New Hampshire plan and the applicants' petition would be unduly burdensome.
For these reasons, they maintain that litigation regardi g the New Hampshire plan should await the disposition of the petition.
B.
The Commission's Rules of Practice prohibit appeals from interlocutory licensing board rulings of the type involved here.6 Thus, the intervenors' motion constitutes a (Footnote Continued) submitted by January 27.
The Board denied those requests.
Licensing Board Memorandum and Order of January 7, 1987 (unpublished). In doing so, however, it noted that if "any party cannot complete its response by January 27, then that party [shall] provide [to the Board by that date] its partially completed response and advise the Board of a reasonab1c date certain on which its written response can be completed."
Id. at 3.
The intervenors also filed a request with the Commission that the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel be appointed to decide, in the Licensing Board's stead, all issues presented by the petition to reduce the size of the EPZ.
Intervenors' Joint Petition for Appointment of Administrative Judge and Request for Hearing (December 22, 1986).
Following its transmission to him by the Secretary of the Commission for consideration and disposition, the Chief Administrative Judge denied the request.
Memorandum and Order of December 31, 1986 (unpublished).
See 10 CFR 2.730 (f).
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request that we exercise our discretionary authority to review the Board's ruling by way of directed certification.
We employ such power, however, only when a licensing board's action either (a) threatens the party adversely affected with immediate and serious irreparable harm which could not be remedied by a later appeal, or (b) affects.the basic-structure of the proceeding in a pervasive or unusual 0
manner.
Where a scheduling order is involved, that See 10 CFR 2.718(i), 2.785 (b) (1) ; Public Service Co.
of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-271, 1 NRC 478, 482-83 (1975).
The NRC staff-treated the intervenors' motion as a request for a stay pursuant to 10 CFR 2.788.
In terms, however, that section is applicable only to endeavors to obtain "a stay of the effectiveness of [a] decision or action pending filing of and a decision on an appeal or petition for review."
Here, no appealable Licensing Board decision or action is involved.
Rather, the intervenors are seeking interlocutory review of a scheduling order.
Accordingly, as indicated in the text, they are in essence calling upon us to invoke our directed certification authority and must meet the standards for the exercise of that authority.
The foregoing does not mean, of course, that our stay authority is necessarily limited to circumstances in which Section 2.788 comes into play.
Although we need not explore the matter here, there well may be occasions on which the grant of stay relief will be appropriate in the exercise of our general supervisory authority over licensing board proceedings.
See generally Philadelphia Electric Co.
(Limerick Generating Station, Unit 1), ALAB-835, 23 NRC 267, 270 (1986).
8 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
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6.
6 standard ordinarily requires a showing that the schedule deprives the complaining party of its right to procedural due process.9 There has been no showing here that the Licensing Board's decision to move forward on both fronts simultaneously necessarily will deprive the intervenors of their right to a fair hearing.
Although the intervenors tell us that the hearing schedule allows insufficient time to prepare for litigation of the New Hampshire plan, they do not specify, let alone document, those elements of the schedule with which they cannot satisfactorily comply.10 Nor do they substantiate their assertion that the schedule is unreasonable.
In this connection, -it is noteworthy that their request filed with the Commission and the Licensing Board (attached as Exhibit 1 to the motion filed with us) claimed that litigation of the various issues raised by the contentions directed to the New Hampshire plan "would require a substantial allocation of Intervenors' resources to fully and properly prepare these issues for final
' Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367, 370-71 (1981).
We note, by way of contrast, that the Attorney General's December 30 request that the Licensing Board reconsider its ruling requiring responses to the applicants' petition to be filed by January 27 was accompanied by affidavits attempting to portray the difficulties attendant upon compliance with that Licensing Board schedule.
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hearing" 1 but did not challenge the reasonableness of the schedule.
In any event, as noted above, the Licensing Board has now modified its earlier schedule and, in effect, granted the intervenors' request in part by announcing a brief deferral of prehearing activity in connection with litigation of the New Hampshire plan.
The stated purpose of this deferral is "to permit the parties an unencumbered period to respond" to the petition to reduce the size of the EPZ.
And, in response to filings by several parties, including the intervenors, it also indicated a willingness to accept incomplete responses to the applicants' petition, provided the parties advise the Board by January 27 of the~
date on which their written responses likely will be completed'.
See supra note 5.
At present-we cannot say that simultaneous litigation, if it-occurs, will necessarily be.
so onerous as to deprive the intervenors of the fair hearing to which they are entitled.
Intervenors' Motion, Exhibit 1, at 3.
12 Licensing Board Order of January 9, 1987 at 1.
The Board deferred from January 16, 1987 to February 13, 1987, the issuance of its order ruling on contentions and starting the clock running for discovery.
All other dates are correspondingly deferred, with the hearing now scheduled to begin no earlier than May 28, 1987.
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To be sure, the upcoming litigation over the New Hampshire plan will be-rendered largely academic if the Commission. ultimately decides to reduce the radius of'the
- EPZ from ten miles'to one.
But a mere commitment of resources to a hearing that may later turn out to have been unnecessary does not justify interlocutory review of a Licensing Board order.
Moreover, it is far from inevitable that the hearing will prove to be unnecessary.
It is possible that the applicants' proposal to reduce the size of the EPZ will be rejected.
If so, litigation regarding the New Hampshire plan will be required.
In such circumstances, deferral of that litigation could seriously delay' final resolutio'n of issues surrounding the plan.
The intervenors' motion is denied without prejudice to the submittal of a new request at a later date should due process considerations so dictate.14 I
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1113-14 (1982).
14 Any further request for modification of the hearing schedule should be directed first to the Licensing Board.
Cf. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10, 12 (1976).
And if that Board were to deny it, our review, of course, could be obtained only by directed certification.
See supra pp. 4-5.
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It-is so~ ORDERED, FOR THE APPEAL' BOARD b.
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-- C. J{$1n-SKoemaker
.Secr&ary to_the Appeal Board I
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