ML20207Q332
| ML20207Q332 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/16/1987 |
| From: | Ferster A HAMPTON, NH, HARMON & WEISS, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2244 OL, NUDOCS 8701270174 | |
| Download: ML20207Q332 (16) | |
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January 16, 1987 UNITED STATES NUCLEAR REGULATORY COMMISSIONig ~ d 20 P4 :03 (
3 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD s
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In the Matter of
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Public Service Company of
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New Hampshire, et al.
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Docket Nos. 50-443 OL
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.50-444 OL (Seabrook Station, Units 1 & 2)
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INTERVENORS NECNP, THE COMMONWFALTH OF' MASSACHUSETTS, THE TOWN OF HAMPTON, AND SAPL'S JOINT APPEAL OF THE LICENSING BOARD'S SUPPLEMENTAL MEMORANDUM' AND ORDER OF JANUARY 7,1987 I.
INTRODUCTION l
Pursuant to 10 C. F.R. S 2.714a, Intervenors New England Coalition on Nuclear Pollution ("NECNP"), The Commonwealth of Massachusetts, The Town of Hampton, and SAPL hereby appeal the Licensing Board's Order of January 7,1987 denying the parties various objections and motions for reconsideration of the Licens-ing Board's Memorandum and Order of December 23, 1986, including, inter alia, the parties' objections to the schedule established by the Licensing Board's January 7,1987 Order for responding to the Applicants' petition under 10 CFR 2.758 and 10 CFR 50.47(c) requesting a reduction in the size of the Seabrook Emergency h[k fD C g3
- )$6 a
. Planning Zo ne ( "EPZ.") from ten to one mile in radius.1 Inter--
venors also appeal the standard that the Licensing Board indi-cated in its Order that it intends to apply in determining whether Applicants have made a prima facie showing for a waiver of the 10-mile EPZ.
II.
BACKGROUND In September, 1986, the Governor of Massachussetts unequiv-ocably announced that Massachussetts will submit no plans for the Seabrook EPZ, due to grave concerns that emergency plans "could not constitute appropriate protective measures adequate to pro-tect the public health and safety in the event of a radiological emergency, as federal law requires."
Applicants subsequently filed a petition under 10 CFR 2.758 and 10 CFP 50.47(c) request-ing an exemption form NRC rules, reducing the size of the Seabrook Emergency Planning Zone ("EPZ") from ten miles to a nominal one mile in radius.2 On December 22, 1986, in response 1
See "NECNP's Objection To and Motion For Reconsideration of the Licensing Board's Memorandum and Order of December 23, 1986,"
l dated December 31, 1986; "NEC Staf f's Mo tion for Reconsideration of Licensing Board Order of December 23, 1986," dated January 5, 1987; " Attorney General Francis X.
Bellotti's Objection and Motion for Reconsideration of December 23, 1986 Order Setting Schedule for Applicants Petition," dated December 30, 1986; " Town i
of Hampton's Objection and Motion To Reconsider Schedule on Applicants' Petition," dated December 24, 1986; and "SAPL's Objection and Motion for Reconsideration of ASLB Order of Decem-ber 23, 1986," dated December 24, 1986.
2 See Applicants' Petition Under 10 CFR 2.758 and 10 CFR 50.47(c) With Respect to the Regulations Requiring Planning for a Plume Exposure Pathway Emergency Planning Zone In Excess of a One-Mile Radius," dated December 18, 1986.
l L
. to Applicants' petition, NECNP and other intervenors jointly requested, inter alia, the Licensing Board to hold 4.djudicatory hearings on the disposition of Applicants' petition.3 The fol-lowing day, the Licensing Board issued an order sua sponte requiring the submission of all responses to Applicants' petition by January 27, 1987, which order indicated that the Board intended to rely on affidavits from the parties in considering the merits of Applicants' petition, as provided by 10 CFR S 2.785(b).
On December 31, 1986, NECHP filed an Objection To and Motion For Beconsideration of Licensing Board's Memorandum and Order of December 23, 1986, arguing, inter alia, that the disposition of Applicants' petition under 10 CFR 2.758 and 10 CPR 50.47(c) by affidavit violates the Atomic Energy Act's guarantee of a formal aajudicatory hearing on all issues material to the issuance of the license, and that the January 27, 1987 deadline established cy the Licensing Board for the parties to submit responses to Applicant's petition denied Intervenors an opportunity to make any meaningful contribution to the record.4 On January 7, 1987, the Licensing Board issued a Supplemental Memorandum and Order Joint Petition for Appointment of Administrative Judge and Request for Hearing.
By order of December 24, 1986, the Commis-sion referred the petition to the Chief Administrative Judge.
4 The NRC staff also moved for reconsideration of the Licensing Board's Order of December 23, 1986, on the grounds that the schedule established by the order did not adequately allow for the Staffs' technical imput on Applicants' petition.
L
. denying NECNP's motion for a formal adjudicatory hearing on Applicants' petition.
The Board further refused to extend the January 27, 1986 deadline for responding to Applicants' petition, instead stating:
If, however, any party cannot complete its response by Janu-ary 27, then that party will provide to this Board by close of business on January 27, 1987, its par tially completed response and advise the Board of a reasonable date certain on which its written response can be completed.
The Board's Order also indicated that the standard it would apply in determining whether Applicants had made the " prima facie showing" required by 10 C.F.R. S 2.258(b) would be whether Applicants' haa submitteo " evidence of a sufficient nature that would cause reasonable minds to inquire further."
III. JURISDICTION An interlocutory appeal of the Licensing Board's January 7, 1987 Order is appropriate under to 10 C.F.R.
S 2.714a in the present circumstances, since the Board's Order, if given effect, will substantially and irreparably impair Intervenors' ability to participate or contribute to the record in a meaningful way in opposing Applicants' extraordinary and unprecedented petition for a waiver of the lo-mile EPZ.
Applicants' proposed one-mile EPZ -- a size so nominal as to amount to no EPZ -- would have the the most profound ef fect on this proceeding.
It would constitute a repudiation of the basic, post-TMI philosophy underlying the emergency planning rules:
that is, that emergency preparedness is required as a separate and independent layer of defense-in-depth, wholly apart from engineered safety features.
It is clear
S-that the licensing of the plant will stand or fall on the dis-position of Applicants' petition, since Applicants will not otherwise satisfy the Commission's mandatory requirements that offsite emergency plans be submitted and approved due to the non-participation by the Massachusetts state and local governments within the 10-mile EPZ.
Applicants' petition is premised on a series of documents involving complex and highly controversial probabilistic techni-cal analyses of plant behavior and accident consequences, that have taken the Applicants' years to produce and the NRC and its contractors many months to preliminary review.
An issue of this import and complexity should not be decided of an improper legal standard, nor under the highly compressed schedule established by 4
the Licensing Board.
Accordingly, the ASLB order af fects the basic structure of the entire licensing proceeding in a pervasive and unusual manner, and is therefore appropriate for review by the Appeal Board at this time. See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
IV.
ARGUMENT A.
The Licensing Board's Order Incorrectly Defines " Prima Facie."
The Board's Order fails, fundamentally, to comprehend the nature of, and the standard governing, the procedure for sum-marily disposing of Applicants' petition for a waiver of the 10-mile EPZ.
Regulation 10 C.F.R. S 2.258(b) allows the Licensing Board to summarily dispose of Applicants' petition if, on the
4 6-basis of affidavits filed by the parties and oral argument, the Applicants' fail to make a " prima facie showing."
The standard for making this summary determination is not left to the Licens-ing Board's discretion, but has been defined by Appeal Board decisions as requiring the petitioner to make a "s ubs tan t ia l showing" that application of the rule for which a waiver is sought would not serve the purposes for which the rule was adoptea. Carolina Power & Light Company and North Carolina East-ern Municipal Power Agency (Shearon Harris Nuclear Power Plant),
LBP-85-5, 21 NRC 410, 4 4 3 n.16 (1985).
Moreover, this decision states clearly that "the burden is on the petitioner for a waiver."
Id.,
at 444.
This burden is clearly not a light one.
Rather, " Petitions for waivers or exceptions should be granted only in ' unusual and compelling circumstances.'" In the Matter of Cleveland Electric Illuminating Co (Ferry Nuclear Power Plant),
LBP-85-33, 2 2 NRC 4 4 2, 445 (1985) (citing North States Power Co.
(Monticello Nuclear Generating Plant, Unit 1), CLI-72-81, 5 AEC 25, 26 (1972)).
The Licensing Board, however, has ignored these clear direc-tives and instead, has enunciated its own standard for a prima facie showing.
In a footnote that is no less than extraordinary, the Licensing Board acknowledges the accepted definition, and then states without any citation or justification whatsoever:
"We believe, however, prima facie to mean evidence of a suffi-cient nature that would cause reasonable minds to inquire fur-ther."
This new standard, which is less strict than the standard
4 7-intervenors must meet in order to have a contention admitted, in effect, improperly shif ts the burden of proof f rom Applicants to 3
parties opposing the waiver, in clear contradiction to past agency decisions.
Furthermore, Licensing Board's standard cannot be reconciled with the underlying purpose of 10 C.F.R. 5 2.758(b)'s requirement of initial Licensing Board review of exemption petitions.
The obvious purpose of initial Licensing Board review of exemption petitions is to screen out those petitions which, on their face, l
fail to meet the requirements for an exemption.
Only petitions demonstrating this " prima facie showing" are then certified by the Licenseing Board to the Commission for the actual decision on whether the exception should be made.
Thus, full Commission review is reserved only for those petitions that survive a suffi-ciently high threshold showing so as to merit a Commission review or the record and a determination of whether, as a matter of policy, the extraordinary remedy of an exemption from Commission regulations is warranted.
However, the " prima facie" standard set out in the Licensing Board's order essentially permits Applicants' to achieve full Commission review without making any threshold showing whatsoever.
Clearly, had the Commission intended to undertake this screening process for each and every exemption petition itself, regardless of the merits of the peti-tion, it would have dispensed with initial Licensing Board review altogether.
In sum, the " prima facie" standard set out in the Licensing Board's Order is inconsistent with prior Appeal Board decisions,
(-
- establishes too low a burden on Applicants seeking exemptions, improperly shifts the burden of proof to the party opposing the petition, and, in effect, eviscerates the purpose underlying 10 C.F.R.
S 2.758(b).
Accordingly, it should be reversed by the Appeal Board.
B.
The Schedule Es tablished By the Licensing Board to Review Applicants' Petition under 10 C.F.R. S 2.758 Denies Intervencre A Meaningful Opportunity to Participate.
The Licensing Board has dictated a schedule for Intervenors to prepare and submit opposing affidavits that is so compressed as to deny them any meaningful opportunity to contribute to the record.
The Licensing Board has allowed Intervenors only one month to respond to a series of documents and positions that it has taken the Applicants years to prepare and the NRC and its contractors many months simply to preliminarily review.
Th e N RC Staf f and Brookhaven National Laboratory, whose assistance cost the taxpayers $240,000, took four months to perform what Brook-haven concedes to be an extremely limited review of the Risk Man-agement and Emergency Planning Study and Emergency Planning Sensitivity Study.
In addition, the NRC, Brookhaven, and Lawrence Livermore Laboratories took many more months to review the Probabilistic Safety Assessment that was submitted by Public s
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_g-Service Company in 1983.5 According to the attached affidavit of Steven C. Sholly, who has been retained by the Comm.onwealth of Massachusetts to perform a technical review of Applicants' e xemp-tion filing, a minimum of six months will be required in order to perform the analyses necessary to providing a meaningful response to Applicants' e xemp tion request.6 The exemption request is based upon a series of complex and controversial probabilistic risk assessments, only the results of which are contained in the documents submitted by Applicants.
The underlying analysis and calculations, computer codes and assumptions which allegedly sup-port these results undoubtedly comprise thousands of additional pages.
The Licensing Doard's schedule further fails to recognize that Intervenors are simultaneously involved in three separate 5
None of tnese documents were considered licensing documents, and thus there was no reason for NECNP to review them before Applicants' petition was filed.
In fact, until September of 1986, Applicants refused to send the parties copies of the Risk Management and Emergency Planning Study and Emergency Planning Sensitivity Study on the ground that they did not constitute licensing documents and therefore were not required to be served on the parties.
Moreover, throug hout the process of preparing and reviewing the risk management and emergency planning sensitivity studies, Applicants studiously avoided making any formal request for a waiver from the regulations -- thus depriv-ing NECNP of the opportunity of requesting discovery on the docu-ments.
6 See Affidavit of Steven C.
Sholly, attached to "At torney Gen-eral Francis X.
Bellotti's Objection and Motion for Reconsidera-tion of December 23, 1986 Order Setting Schedule for Applicants Petition," dated December 30, 1986, attached hereto for the con-venience of the Appeal Board.
l
. proceedings involvina the licensing of the Seabrook power plant, each of which involve expedited briefing schedules requiring Intervenors' immediate attention.
Most recently, in the parallel proceeding regarding Applicants' petition for issuance of a low power license for Seabrook Station, the Commission, sua sponte, stayed the issuance of a low power license pending its review of Intervenors' argument that NRC regulations prohibited the issuance of a low power license prior to submission of emergency plans by the affected state and local governments.
In its order, the Commission established an expedited schedule which requires Intervenors to file briefs by January 21, 1987 and February 3, 1987, and. then stated "The Licensing Boards may, of course, make any necessary adjustments to their schedules that fairness dic-tates to accommodate the Commission's expedite briefing sched-ule."7
'I t hardly needs to be said that the one-month deadline established by the Licensing Board utterly fails to take these additional obligations into account.
Pelief from the Licensing Board's schedule is particularly imperative in the context of a petition for a regulatory waiver.
Assuming Applicants' petition survives the low threshold showing required by Licensing Board's Order, and the issue is certified to the full Commission, it is unclear from the precise wording of 10 C.F.R.
S 2.758(d) whether the Commission may then grant the petition solely on the basis of the affidavits and the record 7
January 9, 1987 Order of the Commission, at 2.
.. before it without providing any opportunity for further submit-tals.
If no adjudicatory hearing is granted, then the inadequat-and incomplete opposing affidavits --
which is all the Licensing Board's schedule permits -- may comprise the sole record on which the Commission must base such a weighty and far-reaching question as whether the size of the Seabrook Emergency Planning Zone could be reduced by a factor of ten.8 Unless the Commission is prepared to provide Intervenors with some certainty that it will be afforded a formal adjudicatory hearing in the vent that the Commission determines that an exception to the 10-mile rule should be made, it is imperative that the Board establish a schedule that allows a balanced opportunity for Intervenors to retain consultants, review this massive record, conduct a meaningful evaluation, and prepare an adequate record for the Commission's review.
If the Appeal Board finds that it is con-O NECNP continues to assert that it is entitled, under the Atomic Energy Act, to an adjudicatory hearing on the crucial issue of Applicants' petition for a waiver.
To the extent that j
the procedures for obtaining regulatory waivers outlined in 10 CFR S 2.758(d) appear to allow the Commission to grant a waiver solely on the basis of affidavits, this discretion is cir-cumscribed by the Atomic Energy Act's guarantee of a formal adjudicatory hearing on all issues material to an operating license.
Union of Concerned Scientists v.
U.S. Nuclear Regulatory Commission, 735 F.2d 1437, 1443 (D.C. Cir. 1984).
The Commission has no authority under the law to shunt these particu-lar issues material to Applicants' operating license application
-- upon which, it is clear, the licensing of the plant will stand l
or fall -- into an informal proceeding in which no opportunity for discovery or cross-examination is provided.
However, NECNP recognizes that under 10 C.F.R.
S 2.258(d), such a hearing may be deferred until both the Licensing Board, and then the Commission, determine that Applicants have made the prima facie showing required by the rule.
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D strained from altering the schedule established by the Licensing Board for submitting opposing affidavits, Intervenors request that the Appeal Board immediately certify the question of Inter-venors' entitlement under the Atomic Energy Act to an adjudicatory hearing to the Commission, pursuant to its authority under 10 C.F.R. S 2.785(d).
The Licensing Board's indication that it will consider permitting the submission of documents after the January 27th deadline does not solve this problem.
In effect, the Board has required that Intervenors undertake the costly process of retain-ing experts to perform a technical review of the complex docu-ments supporting App'licants' petition, without any certainty that once such documents are prepared and the expenses incurred, the Board will make them part of record.9 It is unreasonable to expect Intervenors to incur such costs without assurance that their scarce resources and time will not be needlessly expended.
Moreover, sworn affidavits were already presented to the Board supporting the need for at least six months to prepare a response.10 The ' Board's order failed to point out any-deficiency in these affidavits nor even to mention them at all.
Intervenors should not be left to speculate as to the Board's reasons for rejecting their showing of need for additional time, nor should 9
The Commonwealth of Massachusetts has been provided estimates
'from experts that it would cost $500,000.00 to prepare a response to the issues raised in this exemption request.
10 See Affidavit of Steven C.
Sholly, at 11 8 and 9.
. they be left in the precarious position of not knowing whether the Board will accept material submitted after January 27, 1987.
In short, fundamental principles of fairness and due process dic-tate that the parties to this case be accorded a fair considera-tion of their pleadings and some reasonable certainty that they will be given an opportunity to participate in a meaningful fash-ion in this critical determination.
In light of the time and resources needed by the NRC Staff and Intervenors to perform even a limited review of these docu-ments, the extraordinarily restricted schedule established by the Board for intervenor responses does violence to the concepts of~
fairness and balance in providing an opportunity to make a meaningful contribution to the record.
"When parties to an action are not permitted to prepare their case, the fundamental fairness of the administrative process is called into question."
Cuomo v.
U.S. Nuclear Regulatory Commission, No. 84-1264, slip op. at 5 (D.C.D.C.,
April 25, 1984).
V.
CONCLUSION In consideration of the foregoing, Intervenors request that the Appeal Board take jurisdiction (1) to reverse the Licensing Board's refusal to reconsider the schedule requested by Inter-venors, and grant the following as a reasonable schedule for the resolution of the issues presented by Applicants' waiver peti-tion:
Discovery January 1 - May 1, 1987 Direct testimony due July 1
14 -
Rebuttal testimony due August 1 (2) reverse the Licensing Board's January 7, 1987 to the extent that it indicates that it intends to apply an incorrect standard in determining whether Applicants have made a prima facie showing for a waiver-of the 10-mile EPZ, and order that the Licensing Board require Applicants to make a " substantial showing" that they are entitled to a waiver under 10 C.F.R. S 2.758(b).
Alternatively, if the Appeals Board finds that it is constrained from altering the schedule established by the Licensing Board for submitting opposing affidavits, Intervenors request that the Appeal Board immediately certify the question of Intervenors' entitlement under the Atomic Energy Act to an adjudicatory hear-ing to the Commission, pursuant to its authority under 10 C.F.R.
S 2.785(d).
Respectfully submitted,
' ' ' ~ ~
~ e Andrea Ferster HARMON & WEISS 2001 "S" Street N.W.
Suite 430 Washington, D.C.
20009 (202) 328-3500 January 16, 1987
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CERTIFICATE OF SERVICE ggggg 7 U%c I certify that on January 16, 1987, copies of INTERVENORS NECNP, THE COMMONWEALTH OF MASSACHUSETTS, THE TOWN OF HAMPTON, AND SAPL'S JOINT APPEAL OF THE LICENSING BOARD'S SUPPLEMEEEAdMi 20 P4:04 MEMORANDUM AND ORDER OF JANUARY 7, 1987 were served on the fol-lowing by first-class mail or as otherwise indicated:
-O f f,n..,
.u SOCXUn.u z - 6q g, Helen F.
Hoyt, Chairman Rep. Roberta C.
Pevear ERANCH Atomic Safety and Licensing Board Crinkwater Road U.S.
Nuclear Regulatory Commission Hampton, Fa lls, NH 03844 Washington, D.C.
20555 Phillip Ah rens, Esq.
Dr. Jerry Harbour Assistant Attorney General Atomic Safety and Licensing Board State House, Station 4 6 U.S.
Nuclear Regulatory Commission Augusta, ME 04333 Washington, D.C.
20555
- Thomas G.
Dignan, Esq.
Dr. Emmeth A.
Luebke R.K.
Gad II, Es q.
Atomic Safety and Licensing Board Popes & Gray U.S.
Nuclear Regulatory Commission 225 Franklin Street Washington, D.C.
20555 Boston, MA 02110 Atomic Safety and Licensing Board Robert A.
Backus, Esq.
Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory Commission 111 Lowell Street Washington, D.C.
20555 Manchester, NH 03105
- Atomic Safety and Licensing Appeal Rober t G.
Perlis, Esq.
Board Panel Sherwin E.
Turk, Esq.
U.S.
Nuclear Regulatory Commission Office of the Executive Legal Kashington, D.C.
20555 Director U.S.
Nuclear Regulatory Commission Docketing and Service Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission hashington, D.C.
20555 Mr. Angie Machiros, Chairman Board of Selectmen Mrs. Anne E.
Goodman Newbury, MA 01950 Board of Selectmen 13-15 New Market Road H. Joseph Flynn, Es q.
Durham, NH 03842 Of fice of General Counsel Federal Emergency Management Agency William S.
Lord, Selec tma n 500 C Street S.W.
Town Hall -- Fr iend Street Washington, D.C.
20472 Amesbury, MA 01913 George Dana Bisbee, Es q.
Jane Doughty Stephen E.
Me r r ill, Es q.
SAPL Office of the Attorney General 5 Market Street State House Annex Portsmouth, NH 03801 Concord, NH 03301 o
a
, Carol S. Sneider, Esquire Allen Lampert Assistant Attorney General Civil Defense Director Department of the At torney General Town of Brentowood 1 Ashburton Place,.19th Floor Exeter, NH 03833 Boston, MA 02108 Richard A.
Hampe, Esq.
Stanley W. Knowles Hampe and McNicholas Board of Selectmen 35 Pleasant Street P.O.
Box 710 Concord, NH 03301 North Hampton, NH 03826 Gary W.
Holmes, Esq.
J.P.
Nadeau, Selectman Holmes & Ellis Town of Rye 47 Winnacunnent Poad 155 Washington Road Hampton, NH 03842 Rye, New Hampshire 03870 William Armstrong Richard E.
Sullivan, Mayor Civil Defense Director City Hall 10 Front Street Newburyport, MA 01950 Exeter, NH 03833 Alfred V.
Sargent, Chairman Calvin A.
Canney Board of Selectmen City Manager Town of Salisbury, MA 01950 Ci ty Hall 126 Caniel Street Senator Gordon J.
Humphrey Portsmouth, NH 03801 1 Pillsbury Street Concord, NH 03301 Matthew T.
Brock, Esq.
Shaines & McEachern Selectmen of Northampton P.O.
Bo x 3 60 Northampton, New Hampshire 03826 Maplewood Ave.
Portsmouth, NH 03801 Senator Gordon J.
Humphrey 531 Hart Senate Of fice Bldg Edward A.
Thomas Washington, D.C.
20510 Federal Emergency Management ATTN: Janet Cort Agency 442 J.W.
McCo rmack (POCH)
Michael Santosuosso, Chairman Boston, MA 02109 Board of Selectmen Jewell Street, RFD # 2 Sandra Gavutis South Hampton, NH 03842 Town of Kensington RFD 1 Box 1154 Judith H.
Mizner, Esq.
East Kensington, NH 03827 Silverglate, Gertner, et al.
88 Broad Street Boston, MA 02110
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Andrea Ferster
- Three additional copies were delivered by hand to Administrative Judges Rosenthal, Edles, and Wilber on January 20, 1987.
- By Federal Express m