ML20211A108
| ML20211A108 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/12/1987 |
| From: | Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2505 OL, NUDOCS 8702190092 | |
| Download: ML20211A108 (9) | |
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- Februgggyg, fl987 '
L'91RC UNITED STATES NUCLEAR REGULATORY COMMISSION y
i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'87 FEB 17-P3 :44
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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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OFFSITE EMERGENCY
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PLANNING-f NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S i
RESPONSE IN SUPPORT.0F NRC STAFF'S MOTION FOR CLARIFICATION OF LICENSING BOARD'S ORDER OF FEBRUARY 3, 1987, OR~,
IN THE ALTERNATIVE, NECNP'S MOTION FOR CLARIFICATION AND REQUEST. FOR STAY i
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OF LICENSING BOARD'S ORDER OF FEBRUARY 3, 1987 The New England Coalition on Nuclear Pollution ("NECNP")
supports the NRC Staff's Motion for Clarification of the Licens-
)t ing Board's Order of February 3,1987, and requests that the i
t Licensing Board issue an emergency order clarifying' whether the i
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j February 27, 1987 deadline referred to in Order of February 3,.
4 1987 represents the deadline only for submitting additional argu
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l' ments as to whether Applicants have -satisfied the standard in 10 I
C.F.R. S 2.758 as a matter of law for prima facia entitlement to a regulatory waiver, or whether it is' a deadline for the filing.
of complete technical responses to Applicants' waiver petition.
If it was the Board's intention that February 27th constitute the I-deadline only for filing additional legal arguments, and that a
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further opportunity will be provided for the parties to respond
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to the technical matters raised in Applicants' waiver petition, then NECNP requests no further relief.l' i
l NECNP has informed the Licensing Board that it will rest on arguments filed February 2,1987, as_to whether Applicants l~
satisfy 10 C.F.R. S 2.758 as a matter of law.
However, NECNP-l-
8702190092 070212
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- However, if the Board intends that February 27th constitute the deadline for filing complete technical responses, NECNP respectfully requests that the Licensing Bo,ard issue a stay of its February 3,1987 Order, purusuant to 10 C.F.R. S 2.788, and otherwise refrain from establishing deadlines for the completion and filing of technical responses until such time as the issues raised in Intervenors' now-pending appeal to the Atomic Safety Licensing and Appeal Board is resolved.2 I.
Background
On December 23, 1986, Licensing Board issued an order sua sponte requiring the submission of all response's to Applicants' petition for a waiver of emergency planning regulations by Janu-ary 2 7,1987, 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, NECNP filed an Objection To and Motion For Reconsideration 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 CFR 50.47(c) by (continued) requested six additional months for the preparation of a full technical case' in opposition to Applicants' petition if the Licensing Board should find that Applicants have presented a prima facie case.
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2 See "Intervenors' Joint Appeal of the Licensing Board's Sup-plemental Memorandum and Order of. January 7,1987," filed January 16, 1987, requesting certification to the Commiss. ion of whether Intervenors are entitled to an adjudicatory hearing on the tech-nical issues raised in Applicants' waiver petition,' and request-ing that the Appeal' Board modify the schedule established by the Licensing Board's January 7,1987 Order.
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' affidavit violates the Atomic Energy Act's guarantee of a formal adjudicatory hearing on all issues material to the issuance of 1
1 the license, and that the January 27, 1987 deadline established by 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.3 On January 7, 1987, the Licensing Board issued a Supplemental Memorandum and Order denying NECNP's motion for a formal adjudicatory hearing on Applicants' petition.
On January 16, 1987, Intervenors filed a joint appeal ~to the Atomic Safety Licensing and Appeal Board requesting certification to the Commission of whether Intervenors are entitled to an adjudicatory hearing on the technical issues raised in Applicants' waiver petition, and requesting modification of the schedule established by the Licensing Board's January 7,1987 Order.4 That appeal is still pending, and the Appeal Board has requested briefs on the certification issue.
On January 28, 1987, the NRC Staff responded to the Applicants' petition.
On February 2,1987, NECNP filed its Opposition to Applicants' peti-tion under 10 C.F.R. S 2. 7 58 and 10 C. F.R. S 50.47(c).
On Febru-ary 3, 1987, the Licensing Board issued an order rejecting the Staff Reponse to Applicants' Petition for a waiver of emergency 3
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.
4 See "Intervenors' Joint Appeal of the Licensing Board's Sup-plemental Memorandum and Order of January 7,1987," filed January 16, 1987.
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planning regulations, and giving the NRC until February 27th to
~ file "a more complete response," with'a corresponding extension for other parties to " supplement and complete their initial responses."
NECNP is now requesting clarification with respect to the-exact nature of the February 27th deadline. set out in the Board's February 3, 1987 Order. The order is-ambiguous in that it can be read either as giving the parties additional time to prepare and file more thorough briefs on the-threshold legal question of whether Applicants have made a prima facie cas'e,'or it can be i
read to set an ultimate deadline for completion of all response, including technical responses on the merits of the petition.
The rule itself provides no guidance on this matter.
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II.
Immediate Clarification of the Board's Order Is Necessary to
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Enable NECNP to File a Responsive Pleading By the February 27th Deadline and Otherwise Preserve Its Rights in-This Proceeding.
NECNP does not intend at this time to file any additional briefs on the question of whether Applicants have met 10 C.F.R. S S 2.758's threshold standard for evening having their technical arguments be considered.
It is NECNP's interpretation that only if the Board and the Commission determine that Applicants' peti-tion satisfies 10 C.F.R. S 2.758 as a matter of law, is it necessary to then submit technical responses to Applicants' peti-tion.
If this occurs, NECNP'.does intend to address the petition on the merits.
However, one possible interpretation of the 4
Board's Order is that it is requiring full technical res' onses by p
Februhry 27, 1987.
We not believe that we can complete a full technical response to Applicants'. petition by February 27th.
If i
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that is what the Board is ordering, we ask to be-informed as quickly as possible so that we may attempt t'o comply with the deadline to the extent possible, and otherwise preserve our rights-in this proceeding.
III. NECNP Satisfies the Standard Set Out in 10 C.F.R. S 2.788(b) for a Stay of the Board's February 3, 1987 Order.
A.
.NECNP Has a Strong Likelihood of Prevailing on the Merits.
If the Board intends for February 27, 1987 to be the dead-line for filing complete technical responses to Applicants' waiver petition, rather than for legal responses going only. to; the threshold issue of whether Applicants have made a prima facie showing that the purposes of the 10-mile emergency planning zone would not be served by applying it to Applicants, then the Board has incorrectly interpreted the procedure set out in '10 C. F.R.
S 2.758(b).
It is NECNP's position, first, that the disposition of Applicants' petition under 10 CFR 2.758 and 10 CFR 50.47(c) by-af fidavit violates the Atomic Energy Act's guarantee of;a formal adjudicatory hearing on all issues material to the issuance of the license.5 Second, NECNP believes-that it is premature for:
the Board to require te hnical responses prior to a decision by c
the Board and Commission on the threshold question of whether Applicants satisfy the requirements of 10 C.F.R. S 2.758(b) as a matter of law, and that the rule instead contemplates a bifur-cated process in which the technical issues are not addressed until and unless Applicants have made a prima facie showing that 5
See "NECNP's Objection To and Motion For Reconsideration of-Licensing Board's Memorandum and Order of December. 23, 1986,"
filed on December 31, 1986.
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. they satisfy the legal standard.
This question of Intervenors' entitlement under the Atomic Energy Act to an adjudicatory. hear-ing and of the proper procedure governing the consideration of petitions under 10 C.F.R. S 2.758(b) was considered sufficiently meritorious so that the Appeal Board has directed the parties file briefs on whether the Appeal Board should certify this ques-tion of law to the Commission.
Thus, NECNP has a strong likelihood of prevailing on the merits.
B.
NECNP Will Be Irreparably Injured By A Board Order Requiring the Submission of Full Technical Responses Prior to Resolution of NECNP's Appeal and Request of Directed Certification Going to this' Issue.
An Order from the Board requiring NECNP to file a complete technical response to Applicants' waiver petition by February 27, 1987 places NECNP in the untenable position of unnecessarily r
expending time and resources t.o prepare, to the extent possible, a full technical response when such a response may, in fact, be unnecessary.
It is NECNP's position, first, that it is premature for the Eoard to-require technical responses prior to a decision by the Board and Commission' on the threshold question of whether Applicants satisfy the requirements of 10.C.F.R. S 2.758(b) as a
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matter of law, second, that NECNP is entitled to a full adjudicatory hearing on the question.
Moreover, NECNP's request that the Appeal Board modify the schedule set out. in the Board's December 23, 1986 Order for responding to Applicant's petition on the grounds that it denies Intervenors an opportunity to make any meaningful contribu' tion to the record is also under considera-tion.
Requiring NECNP to submit a' complete technical response
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before these issues currently under appeal are' resolved by ~the Appeal Board or the Commission, will thus cause NECNP irreparable 4
. injury.
C.
Th'e Stay Will Not Irrepably-Harm Applicants 4
A stay until Intervenors' appeal is reso.lved will~not harm I'
Applicants.
If anything, a stay will benefit Applicants.'
If, as NECNP. contends, consideration. of Appil cants technical ' arguments becomes unnecessary if the Board and the Commission determine j
that Applicants have not made a prima' facie case that~ application of the 10-mile emergency p1dr.ning rule would not serve the pur-poses underlying the rule,- a stay will spare Applicants spared i
the expense of a proving the factual and technical allegations of their petition when, even presuming their truth, Applicants may not be entitled to a waiver as a matter of law.
D.
The Public Interest Favors Granting'A Stay.
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i The public interest favors granting a stay in this instance.
l First, a stay would reflect due deference to the Appeal Board's l
and Commission's review of these issue.
Second, a stay would prevent scarce resources from being unnecesarily expended to meet.
the February 27, 1987.
First, it may be unnecessary to file technical responses at all if the Commission ultimately decides, l
on certification, that 10 C.F.R.
S 2.758(b) does contemplate a
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bifurcated proceeding in which technical issues are not reached until the petitioner makes a prima facie showing of entitlement to a waiver as a matter of law, since no decision has.been J
reached on whether Applicants have made such a showing.
- Second,
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.8-filing of. full technical responses may be premature at this. time, if the' Appeal Board grants Intervenors' request to modify the
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Licensing Board's schedule for responding to. Appiicants' peti-i tion. Thus, the'public interest in conservation of the resources of the agency and the parties to the proceeding. favors granting a stay..
IV.
Conclusion For the foregoing reasons, N5CNP supports the Staff's motion request that the Board immediately clarify the meaning.of the February 27, 1987 deadline established. in its. February 3,1987 Order.
In the alternative, if the February 27, 1987 deadline refers to the deadline for filing full technical responses, NECNP requests the the Licensing Board stay its February 3,1987 Order pending the resolution of Intervenors' Joint Appeal of the Licensing Board's January 7,1987 Order.
4 Respeckfully submitted, hy, $fV O
Andrea Ferster i
Diane Curran HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D. C.
20009 February 12, 1987 (202) 328-3500 I certify that on February 12, 1987, copies of the. foregoing pleading were served by first-class mail on the attached service list.
Andrea Ferster b
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.4 SEm00t SERVICE LIST - 0FFSITE LICENSING BOARD Dif t KE T EF
- Helen-F.Hoyt,Chairsan-
. North Haspton, NH 03826 442 b w'. McCormack (POCH) s I
AtcaicSafetyandLicensing
- RobertG.Perlis,Esq.
Boston, MA 02109 Board
'J.P.Nadeau SherwinE. Turk,Esq.
'87 FEB 17 P3 :45
'U.S. NRC TownofRye Office of General Counsel.
SandraGavutis Washington,D.C. 20555
'155WashingtonRoad U.S. NRC RFD 1 Sox '154
[. f p ens,In Qon g 03827 Rye, New Haspshire 03870 Washington, D.C. 20555 0p 8Dr. Jerry Harbour ggg sp AtesicSafetyandLicensing RichardE.Sullivan, Mayor
.Mr.AngieMachiros,Ch'airaan CharlesP.Grahaa,Esq.
Board CityHall BoardofSelecteen _
. McKay, Murphy and Grahan U.S. NRC Newburyport, MA 01950 Newbury, MA 01950 100MainStreet Washington,D.C. 20555 Asesbury, MA 01913 AlfredV.Sargent,Chairaan H.JosephFlynn,Esq.
- Gustave'Linenberger BoardofSelectmen.
OfficeofGeneralCounsel AtsicSafetyandlicensing Town of Salisbury, MA 01950 FEMA Board 500 C Street S.W.
- Byhand
'U.S. NRC.
Senator Gordon J. Humphrey Washington, D.C. 20472 Washington,D.C. 20555 U.S. Senate
- ByFederalExpress Washington,D.C. 20510 GeorgeDanaBisbee,Esq.
AteticSafetyandLicensing (Attn.TesBurack)
GeoffreyM.Huntington,'Esq.
BoardPanel Office of the Attorney General U.S. NRC SelectaenofNorthampton State House Annex Washington,D.C. 20555 Northarpton,.NewHaspshire Concord, NH 03301 03826 Atesic Safety and Licensing AllenLaspert AppealEcardPanel Senator Gordon J. Husphrey CivilDefenseDirector O.S. NRC 1EagleSquare,Ste507 Town of Brentowood Washington,D.C. 20555 Concord, NH 03301 Exeter, NH 03833 DonetingandService MichaelSantosuosso,Chairaan RichardA.Haspe,Esq.
U.S. NRC BoardofSelectsen HaspeandMcNicholas Wasungt;n,D.C. 20555 JewellStreet,RFDI2 35PleasantStreet South Hatpton, NH 03842 Concord, NH 03301 Mrs. Anne E. Goodsan BcardofSelectmen JudithH.Mizner,Esq.
GaryW. Holmes,Esq.
13-15 New Market Road Silverglate,Gertner,etal.
Holmes &Ellis Durhat,NH 03842 88BroadStreet 47WinnacunnentRoad Boston,MA 02110 Haspton, NH 03842 "illiatS. Lord,Selectaan TownHall--FriendStreet Rep. Rcberta C. Pevear WilliasArmstrong Aserbury, MA 01913 Drinkwater Road CivilDefenseDirector Hasptcn, Falls, NH 03844 10 Front Street Jane Doughty Exeter, NH 03833 SAFL PhillipAhrens,Esq.
5 Market Street AssistantAttorneyGeneral CalvinA.Canney Portssouth, NH 03831 Statehouse,Stationi6 City Manager Augusta, ME 04333 CityHall Carols.Sneider, Esquire 126DanielStreet AssistantAttorneyGeneral
- ThosasG.Dignan,Esq.
Portssouth, NH 03801 1AshburtonPlace,19thFloor R.K.GadII,Esq.
Bosten,MA 02103 Ropes & Gray Matthew T. Brock, Esq.
225FranklinStreet Shaines&McEachern StanleyW.Knowles Boston,MA 02110 P.O. Box 360 BoardofSelectmen MaplewoodAve.
P.O. Box 710 RobertA.Backus,Esq.
Portssouth, NH 03801 Backus,Meyer&Soloson 111LowellStreet EdwardA..Thosas Manchester, NH 03105 FEMA
.