ML20209A802

Applicants Response to Intervenors New England Coalition on Nuclear Pollution,Commonwealth of Ma,Town of Hampton & Seacoast Anti-Pollution League Joint Appeal of ASLB Supplemental Memorandum....* Certificate of Svc Encl

ML20209A802
Person / Time
Site:	Seabrook
Issue date:	01/27/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#187-2391 OL, NUDOCS 8702030446
Download: ML20209A802 (16)

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ED -2 P2 :23 UNITED ETATES C: AMERICA NUCLEAR PEGULATCRY COMMISEION oefore the ATOMIC SAFETY AND LICENSIN3 APPEAL BOARD i

)

! )

f In the Matter of )

! ) Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY CF ) 50-444-OL NEW HAMPSHIRE, et al. )

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

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AFPLICANTS' RESPONSE TO "INTERVENORS l

I NECNP, THE COMMONWEALTH OF MASSACHUSETTS, THE TOAN OF HAMPTON, AND SAPL*S JOINT APPEAL OF THE LICENSING BOARD'S SUPPLEMENTAL MEM3RANDUM AND ORDER OF JANUARY 7. 1967" INTRODUCTION Under date of January 16, 1987, New England Coalition

! ' on Nuclear Pollution (NECNP), The Commonwealth of i

Massachusetts (Mass.), The Town of Hampton (TOH), and Seacoast Anti-Pollution League (EAPL) (hereafter " Joint Appellants")

have filed with this Appeal Board a " Joint Appeal of the b Licensing Board's Supplemental tienorandun and Order of January i The Licensing Daard 7, 1987."

(Hereafter " Joint Appeal").

Order under attack in one in which the Licensing Board I ist stand its prior order to the effect that responses to a 0702030446 070127 3)h gDR ADOCK 05000443 PDR

perding petition filac by t70 Apolt: ants under 10 CCR 2.759 should se filed with tne Li:ersinq 2:ard in-Fanc by tSe close of busi ness on 16nuary 27, 1987. Ir do;ng so, however, the Board noted that:

"If . . . any party :annot complete its response by January 27, then that party will provide to this Board by close of business on January 27, 1987, its partially j completed response and advise the Board of a reasonable date certain on wnich its written respense can be completed." Board Order of Jan. 7, 1987 at 3.

In addition, the Licensing Board indicated in the i

margin that it believed " prima facie Cas used in 10 CFR 2.7503 to mean evidence of a sufficient nature that would cause i

reasonable minds to inquire further." Id. at n.*.

The Joint Appeal purports to be filed under 10 CFR 1

2.714a, although there is at least one reference therein to the i

standards,which are applicable to petitions fer directed

! certification under 10 CFR 2.718(i). Jt. App. at 5. The Joint l

Appeal ultimately seeks to have this Appeal Board (1) reverse the Licensing Board's refusal to rescind the schedule it has set in the 2.750 proceeding, (2) cet a new schedule which would include an opportunity fer dincovery and call for the 4

i filing of direct and rebuttal " testimony," (3) reverse the l Licensing Beard's statements as to the proper definition of prima facie to be applied by it, and (4) tend alternatively)

I to certify to the Com.nission the question of "Intervenors' 2

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entitlement under tre Atonic Energy Act to an adjt.dtcatcry h e a r t . g . . . . id. at 15-14.

For toa reasons set forth selow, the Appplicants say that the Joint Appeal should be densed.

ARGUMENT I. THE APPEAL IS PROCEDURALLY C'EFICIENT ,

1 A. 10 CFR 2.714a Has No Acolicability As noted earlier, the Joint Appeal purports to be filed pursuant to 10 CFR 2.714a. The writer has confirmed with counsel filing the appeal that the reliance upon 10 CFR 2.714a is not an inadvertence. The theory suggested is that l because a formal adjudicatory hearing had been requested from the Licensing Board and this request has been denied, the Joint Appellants have an appeal of right under 10 CFR 2.714a.

This is not the law. The provisions cf 10 CFR 2.758 do not contemplate the filing of petitions for leave to intervene or requests for a hearing before the Licensing Board. Rather the section sets out a special set of procedures which come into play when some party to an ongoing adjudicatory proceeding seeks relief from the regulations of the Commission. The I provisions of 10 CFB 2.714a have nothing to do with that scenario. It is settled that an appeal uncer 10 CFR 2.714a will lie only when an intervono- has been totally excluded from participatton. E.g., Public Service Company of Neu 3

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Hampshire (Seabrook Station,'anits 1 and 2), ALAE-E38, NRC , CCH Nuc. Reg. Rotr. para. 30,o72 (Jure 25, 1996).

Here the Joint Appellants are being afforded ro fawer rights than any other party to the proceeding. The provisions of 10 CFR 2.714a a-e wholly inappcsite.

B. The Criteria for Directed Certification Are Not Satisfied As also noted above, there to reference in the Joint Appeal to the standards applicable to directed certification under 10 CFR 2.718(i). Jt. App, et 5. Directed certification is granted "only when a licensing board's action either (a) threatens the party adversely affected with immediate and serious irreporable harm which cculd not be remedied by a later appeal, or (b) af f ects the basic strutt are of the proceeding in a pervasive or unueual manner." Publi- Service Company of NeN Hampshire (Seabrook Station, Units 1 and 21, ALAB-858, NRC (Jan. 15, 19E7), Slip Op. at 5, citing Public Service Company of Inciana (Marble Hill Nuclear Generating Station, Units 1 end 2), ALAB-405, 5 NRC 1190, 1192 41977). Here the alleged irreparable harm in that the schedule is so compressed as to deny the Joint Appellants a tair hearing. See ALAB-859 at b citing Houston L2 ght2 ng & Power Co. 'Scuth Texas ProJnct, Units 1 aid 2), ALAB-637, 13 NFC 367, 370-71 (1901). The problem with this argument is that the Licensing Daard has not at present foreclosed a furtner filing. Pointedly, it asked 4

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i that parties unanle te respond f '.1 1 ) advise the Licensing

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i Board "of a reasonable care certair c.n wnich i ts '9Fi ttun response can be completed." Thus, at this juncture, any irreparable harm argument is cenjectural at best. The Joint l

Appellants also make at least a orief argunent (Jr. App, at 5) to the effect that the action of the Licensing Board "affects

' the basic structure of the entire licensing proceeding in a pervasive and unusual manner." Yet, all that has happened is 4 that the Applicants have filed a 2.750 petition, a petition hardly novel to licensing proceedings and all that the Licensing Board lu doing is carrying out its obligations under 10 CFR 2.759 in precisely the manner dictated by the regulation. Thus, there is no force to an argument that the second of the Harble Hill criteria has been satisfied.

II. THIS APPEAL EDARD IS WITHOUT JURISDICTION TO GRANT

THE RELIEF SOUGHT IN THE JOINT APPEAL j

i The NRC regulatory ccheme as preser.t'y constituted affords an NRC Appeal Board no apoullate jurisdiction in proceedings before a Licensing Boaed on a 10 CFR 2.758 petition. The regulation contemplates actions by the Licensing Board and olther that Board's denial or the i

certification of the petition, together with the accompanying l

affidavits and any responsus thereto directly to the 1

Commission in the event that tne Licensing Daard finds a prima l

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D fac2 e showing has oeer. naca. There : s no rev.ew f uncts on cf any v7ne centemplated at this stage c+ the Licensing Ecard's con"ideration of the retition.

The Comt.tssion's Rules of Drr.ctice, to began with, prohibit appeals from inter 1ccutcry Licensing Board rulings of the type involved here. Eeo 10 CFR 2.730 (f ) . Thus, Joint appellants are left to but one other avenue for Appeal Board intercession, that is, by way of a Petition for Directed Certification under 10 CFR 2.718(i). But not only must Joint Appellants' request for relief by way of directed certification fail for the reason that they cannot satisfy the standards necessary to invoke this Aopeal Board's discretion, but the route of directed certi41catten to an Appaal Board provided by 10 CFR 2.713(i) and 2.785(b) (1) is itself foreclosed in 10 CFR 2.759 proceedings.

Paragraoh (d) of 10 CFR 2.750 provides that "Ci3f on the basis of the petition, afficavit and any responce provided for in paragraph (b) of [the3 section, the prestctng officer determires that . . . a prima facie shcwing has been made, the presiding of ficer snell, cef ore ruling thereon, certify directly to the Conmission for determination Cthe issue of whether the petition should be allcwoo3." The paragraph, however, specifically directu by footnote that tPe matter will be certified to the Comnisstor notwithstanding the provisions 6

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of 10 CFR 2.785. Thus, wh at seule otherwise 4 all within the Jurisdiction of One Appeal E:ard is proscr: cod in 10 CFR

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2.758 proceedings. ,

It perhaps should be noted c%at Applicants do not argue here that an Appeal Board cannot, unde- any circunstances, have a presence in a 10 CFR 2.758 matter. For l

example, an Appeal Board sitting as a trier of fact would not be precluded from dealing with a 10 CFR 2.758 petition brought to it tn that capacity. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-653, 16 NRC 55 (1981), attachment to CLI-82-19, reported in 16 NRC j 53 (1982). Nor would an Appeal Board in reviewing an initial l decision of a Licensing Board necessarily be precluded from i

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commenting upon the Licensing Board's hciding in the prcceeding under revied that a prima facie s5cwing had not i

been made. See Camioauealth Ediso9 Co mp ar, y (3y-en Nuclear

{ Power Stati on , Uni ts 1 anc 2), ALAB-793, 20 NRC 1591, 1614-16 i

! (1984). Our argunent as to the want of Aopeal Ecard Jurisdiction is dire:t ed soley te directed certification of 10 CFR 2.750 mattern.

In addition, 1r light cf the foetnota to 10 CFR

2.758(d), no argunont can be made that thin Appeal Board ham l

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j the authcrity to grant a right to discovery, or impose a I

j requirement for the filing of testimony or any other of the i l l 7 i

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accoutrements of an adjudicatory nea-ing. To de so wculc, in effect, repeal the provistens o+ 10 C?R 2.759. Similar*y, _

this Appeal Board has no authcrity tnrough exercise of its ,

directed certification autho-ity to set the standa-d for the Licensing Board to folicw in maxing its determination as to

! whether a p*2ma facie shewing nas been made. The Commision has cast a fact-finding NRC tribunal which receives a 10 CFR 2.758 petition in essentially the pcsition of a " gate keeper." In this respect its job is to separate wheat from  ;

! chaff and it alone is the judge of what constitutes a " prima i

i facie showing." Indeed, the requistion does not even contemplate that the Commission will review that aspect of the ,

matter. The Commission will decide whether the waiver or l

exception should be granted. To be sure, it may be that the i

Commission will decide that the hearing tribunal should never have sent the matter up to it and deny the petition in j language making that clear, but the Commission does not review ,

I the pr/ma facte standard used by the trial tribunal, as such.

I  !!!. EVEN ASSUMING JURISDICTION, 1

THE APPEAL IG WITHOUT MERIT.

So much of the Joint Appeal as seeks relief fecm the l

l scheduling order lacks merit in light of the fact that the 4

Licensing Board has yet actually to cut off any further reply i

that any party wishes to make attor January 27, 1987. ,

j Go much of the Joint Appeal as seeks to have this I

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o Appeal Eoard set a schedu;e fer discovery and the filing of testimony or to grart en adjud1cacory hear 1ng is without merit because 10 CFR 2.7"8 simply do2s not permit such proceedings.

Sim11arly, thero is no -eason to issue an order reversing what appears as the Licensing Board's dicta as to what const1tutes a prima facie showirg. Licensin g Board Order of January 7, 1967 at 3 n.*. So far as we are aware, the concept of a "show1ng ... sufficier.t to require reasonable minds to inquire further" first found its way into nuclear Jurisprudence in the Commission's decistor in Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5, 7 AEC 19, 32 at n.27 (1974), reversed sub nes. Aeschliman v. NRC, 547 F.2d b22 (D.C. Cir. 197b), reversed and remanded sut nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 475 U.S. 519 (1978). This phraseology, later explicitly approved by the Supreme Court, was utilized by the Atomic Energy Commission to describe the threshold test which an intervenor had to meet in seeking to have contentions litigated. The Ccmmission stated that the ,

intervencra "have a burden of coming forward with some affirmative showing i f thuy wish to have these novel i

contentions explored further." (Emphasis added). Id. at 32.

Thei, in en f ootncto, the Cominission distinguished " affirmative showing" from "the civil litigation concept of a prima facie case, an unduly heavy burden in this setting." Id. at n.27.

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q Irstead the Commissior, ecuated the intervenors' burden wito.

< - t the language usco by the _1 censing Board aare, i . e'. , that'"tne snowin g shoulc be suf ficient to require reasonab1M minds,to inquire further." Id. (E.nph asi s added) . The language of the text in juxtapositten with the footnote would seem to support;.

the conclusion that a " prima facie showino" is sgmething less than a " prima facie case." And of course the phrase used in ,

D the regulatien is " prima facie showing" not " prima facle cage." -(

It is presumably this concept which the Licensing Board had %in ,o

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mind when it included the dicta here under question. In ALAB-653, supra, the Appeal Board therein sitting as the fact [ '

finder made the following observation in rejecting a 2.750 ,

petitions s .

"Neither the allegations in CIntervenor's] .

petition nor the evidence in the record before us make a prima facie showing of ',,

special circumstances which woald justify a waiver or exception in this case. Friea ,

facie evidence must be legally sufficient to establish a fact or case unless disproved." 16 NRC at 72 (emphasis added).

This later dociaration is perhaps more initune with the concept of a prima facie case found in the dsctionaries. , s s s' Eee, e.g. , Black 's Law Dictionary: "Such as will, suffice until contradicted end overcome by other evidence." Of equal interest is the definition in Black's of the words pries facie standing alonet "At first night; on the first appearance; on the face of its so far as can be judged from the first u, -

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.o disclosure; presumEtiv; a - act presumed to be true unless disoroved oy some evidence to the cartrary," B at h the definiticn of tne Acceal Boarc in ALAB-653, and the core

, traditional definitions in the dictisnaries appear to contemplate that the questio1 of whether a prima fac2e shcwing exists is to be judgec by locking enly at the shcWing itself and assuming all statements in it to be true, unless incredible. Applicants see no difficulty were the Licensing Board ultimately to adopt the classic standard. It is doubtful, however, that the Joint Appellants want that standard applied here. But the unassailable point the Board has made here is that it is not going to decide the petition on the merits, nor is it required to do sc.

Finally, it is to be noted that a great deal of this is simply a tempest in a teapot. Whichever of the standards 4

discussed above an NRC tribunal applies to determine whether or not a prima facie showing has been made, the fact is that eventually the petitioner under 10 CFR 2.758 must convince the Commission of the merits of its petition. Whethe- a given Licensing Board was correct 3r not correct in deciding whether to send a petition up to the Commission is a questien that has no effect on the ultimate decision to be made. The Commission might be rightfully annoyed if frivolous petitions get by a Licensing Board because its standard of judging them were too

low, but that co.cer, is one fc- the Cct-issten nct tais Apoaal Bsard.

IV. THE .E IE NO REGUI :IMENT F0F, FUF.TWEF*_FSC MCCEED:NGS Jn January 21, 1987, we were advised that the Appeal Ecard wished the 4ollowing question to te addressed in this response:

" Assuming the Licensing Ecard finds there is a prima facie case, then can the Commission fix the size of the Plume Emergency Flanning Zone without any further adjudication?"

We believe the answer to this question to be unequivocably in the affirmatise. The regulations are clear.

Under 10 CFR 2.758(d),- tbe Ecmmission:

"may,. among other things, on the basis of tPe petitien, af f i davi ts , and any response, cetermine whether the application of the specified rule cr regulation ':ce provision thereof>

should be waived or an exception be mace, or the Commissicn may direct such further proceedings as it deems appropriate to eid its determination."

The language could hardly be clearer. The Commission has reserved to itself the authority to act as it sees fit with respect to further procedures, including having no further proceedings of any kind. In the cverall context of the petition before the Licensing Board in this case, the Commission ceuld legislatively" fix the boundaries of the Seabrook Plume EPZ on the basis of the record certified to it.

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CONC _UEIGN The Joint Appeal should be dismissea for procecural inadequacy and +cr lack cf jurisdiction. In the event this Appeal Board concludes that it should reach tne merits of the Joint Appeal, it should be denied. Finally, because this Appeal Board lacks furisdiction over the subject matter of the Joint Appeal, it is also without jurisciction to' certify any question in connecticn therewith to the Commission, and, thus, the alternate relief requested should be denied.

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R. K. Gad III Kathryn A. Selleck Deborah S. Steenland Ropes & Gray 225 Franvlin Street Boston, MA O2110.

(617) 423-6100 Counsel for Applicants 13

CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneyd87oq7.hB P2 :23 Applicants herein, hereby certify that on January 27, 1987, I made service of the within document by mailing copies thereof Federal Express to those marked with an a's'ferisk, otherwise first class mail, postage prepaid, to: "" 'n us .

• 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 East 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 Washine'on, 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

a 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

H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emargency 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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maispgnan, Jr.