ML20212R627

NRC Staff Response to Intervenors Joint Motion for Leave to File Supplemental Opposition.* Intervenors Failed to Provide Basis for Withholding Issuance of Partial Initial Decision Re Issuance of Low Power License.Certificate of Svc Encl

ML20212R627
Person / Time
Site:	Seabrook
Issue date:	01/27/1987
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2363 OL-1, NUDOCS 8702030011
Download: ML20212R627 (9)

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2 363 o DO ETED ymoc UNITED STATES OF AMERICA '87 JA!! 30 P4 :32 NUCLEAR REGULATORY COMMISSION W

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket Nos. 50-443 OL-1 PUBLIC SERVICE COMPANY OF ) 50-444 OL-1 NEW llAMPSHIRE, et al. ) Onsite Emergency Planning

) and Safety Issues (Seabrook Station, Units 1 and 2 )

NRC STAFF'S RFSPONSE TO INTERVENORS' JOINT MOTION FOR LEAVI: mn FILE SUPPLEMENTAL OPPOSITION On January 9, 1987, Intervenors SAPL, NECNP and the Common-wealth of Massachusetts filed "Intervenors' Joint Motion for Leave to File

, Supplemental Opposition to Applicants' Motion for Issuance of Partial Initial Decision Authorizing Low Power Operation" (" Motion"), along with the referenced " Supplemental Opposition".1 Therein, the Intervenors seek to supplement their prior responses to Applicants' June 17, 1986 request 2_/ that a Partial Initial Decision (PID) be issued authorizing low power operation for Seabrook. E The NRC Staff (" Staff") hereby files l

-1/ "Intervenors' Joint Supplemental Opposition to Applicants' Motion for Issuance of Partial Initial Decision Authorizing Low Power Operation"

(" Supplemental Opposition"), dated January 9,1987.

-2/ " Applicants' Motion for Incorporation of Certain Materials in Record; for Closing of Record; and for Issuance of Partial Initial Decision Authorizing Issuance of Operating License for Operation Not in Excess of 5% of Rated Power" (Applicants' Motion").

~3/ " Seacoast Anti-Pollution League's Response and Objection to Appli-l cants' Motion for Incorporation of Certain Materials in Record; for l Closing of Record; and for Issuance of Operating License for i (FOOTNOTE CONTINUED ON NEXT PAGE) l

! 8702030011 870127 g i PDR ADOCK 05000443 G PDR

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Its response to Intervenors' Motion. For the reasons set forth below, while the Staff does not oppose the Intervenors' filing of their Supplemental Opposition, they fail to provide adequate grounds for the Licensing Board to withhold issuance of a PID authorizing low power operation for Scabrook.

7ISCUSSION The Intervenors' Motion rests solely upon a newspaper article published in the Boston Globe on December 23, 1986, which reported certain statements purportedly made by Mr. Vincent Noonan, a supervisory employee with the NRC's Office of Nuclear Reactor Regulation having management responsibilities with respect to the Seabrook license application. According to the article, Mr. Noonan had stated that the Staff would be reexamining certain " waivers" which had previously been granted to Seabrook, in light of the Applicants' December 1986 filing of a petition for waiver of the 10-mile plume exposure pathway EPZ. Among l

other statements, Mr. Noonan allegedly stated that the Staff might require Seabrook to make " expensive improvements to its safety systems," after the Staff completes its reexamination of the prior waivers and exemptions.

According to the Intervenors , this new information represents a

" change in the Staff's position on the Seabrook license application," which (FOOTNOTE CONTINUED FROM PREVIOUS PAGE Operation Not in Escess [ sic] of 5% of Rated Power", dated June 27, 1986; " Answer of Attorney General Francis X. Bellotti to Applicants' Motion for Issuance of Operating License for Operation Not in Excess l of 5% Rated Power," dated July 2,1986; and "New England Coalition on Nuclear Pollution's Opposition to Applicants' Motion for Issuance of Partial Initial Decision Authorizing Low Power Operation," dated July 2, 1986.

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, has "significant bearing" on Applicants' " entitlement" to a low power license (Motion, at 2). Further, the Intervenors assert that this information requires that the Licensing Board withhold issuance of a PID authorizing a low pov er license for Seabrook, because "regardless of the Board's determination on any other issues that are before it, the HRC's technical review of the Seabrook operatinfr license application is far from ccraplete or rendv for disposition by this Board" (Id.). In this regard, the Interrenors further state thet:

In light of the Staff's doubts as to the adequacy of the Seabrook operating license application, the Licensing Board and the Director of Nuclear Reactor Regulation Isck sufficient basis for the findings that are required by 10 C.F.R. 5 50.57(a) as a prerequisite to the issucnce of a low power license.

(Supplemental Opposition, at 1-2).

In our view, even assuming that the statements cited in the news-paper article were accurately reported, the Intervenors' Motion fails to demonstrate any reason why the Licensing Board should withhold its PID l cuthorizing the Staff to issue a low power license to Seabrook. First, contrary / to Intervenors' characterizations, the statements recited in the newspaper article merely indicate that the Staff intends to reexamine certain aspects of the Seabrook license application in light of the Applict.r.ts' recent petition, and that the Staff will take such actions, if any, as it deems to be appropriate following the conclusion of its review.

The Intervenors have presented no reason why the Board should presume that the Staff will fail to take all necessary actions prior to issuing a low power license; indeed , the statements cited in the newspaper article indicate that all necessary actions will be taken by the Staff. In the same vein, no reason has been presented which should cause the Board to

withhold issuance of the requested PID, authorizing the Staff to issue a low power license once the Staff is satisfied that all uncontested issues have been properly resolved.

Secondly, pursuant to 10 C.F.R. I 50.57(c), the Licensing Board is to make findings only on the matters specified in 5 50.57(a) "as to which there is a controversy"; as to all uncontested matters, findings are to be made by the Director of Nuclear Reactor Regulation. The Intervenors do not -- nor could they -- contend that the matters reported in the newspaper article are within the scope of any previously admitted contention in this proceeding. P.at her , these metters have never been contested previously; as such, pursuant to 10 C.F.R. I 50.57(c), they are properly within the purview of the Staff, to be considered along with other uncontested issues which might hear upon the Seabrook operating license application. 4/

In this regard, the Commission has clearly stated that, in an operating license proceeding, uncontested matters are outside the scope of the Board's authority -- and, further, that the Board may not even require the Staff to supply information concerning uncontested matters, unless the Board has already received relevant information which, by itself, could support the Board's adoption of a sua sponte issue:

i For did the Appeal Board here have the authority sua sponte to seek to obtain information relevant to the 4_/ The Intervenors certainly recognize that , pursuant to 10 C.F.R. 5 50.57(c), uncontested matters are properly within the Staff's bailiwick. For example, in its initial response to Applicants' Motion (at p. 5), NECNP recited the rule that the Board must issue its findings "with respect to all contested issues," and that a party's right to a hearing exists "to the extent that his contentions cre relevant to the activity to be authorized."

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motion to reopen. Boards have the authority to examine issues not placed in controversy by the parties only where specific facts are brought to their attention indicating that there is a serious safety, environmental, or common defense and security matter. . . . The Appeal Board made no such finding here, and none could have been made because, as explained above, the mere pendency of OI investigations by themselves here

-- the basic specific fact brought to the Appeal Board's attention -- does not raise a serious safety matter.

Accordingly, the Board had no authority to pursue this matter as it did. 5/

5/ At an operating license hearing, a board passes cEly cn issues put in contest. The decision as to all ether matters which need to be addressed prior to issuance of the license is the responsibility of the Commission and Staff outside of the adjudicatory context.

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),

CLI-80-1, 23 NRC 1, 7 (1980).

Finally , while the Intervenors indicate that they might seek a hearing to litigate the results of "the Staff's new review" (Supplemental Opposition, at 4), they have not yet filed any motion to reopen, as they would be required to do now that the record of the onsite proceeding has been closed. Similarly, the Interverors have not filed any new contention seeking te litigate these matters, as they would be reauired to do in order to raire new matters which are outside the scope of any previously admitted contentions. Accordingly, the Intervenors have failed to provide any basis for the Eoard to believe that further hearings may need to be

held before the Board can publish a PID authorizing the issuance of a low power license for Seabrook. 5 CONCLUSION Tor the reasons set forth above, the Intervenors have failed to provide any basis for the Board to withhold issuance of a Partial Initial Decision authorizing the Staff to issue a low power license for Seabrook, once the Director of Nuclear Reactor Regulation makes his required findings on uncontested issues pursuant to 10 C.F.R. 5 50.57.

Respectfully submitted, Sherwin E. Turk Senior Supervisorv Trial Attorney Pated at Bethesda, Maryland this 27th dcy of January,1987

-5/ In addition, even if the Intervenors had filed a motion to reopen based upon this newspaper article, and assuming that the article somehow related to a previously admitted contention, the record could not be reopened on this basis alone. See, e.g. , Waterford, supra, CLI-86-1, 23 NRC at 6 n.2 (" hearsay based on a newspaper article does not constitute the kind of evidence that can support a reopening motion"); Id., ALAB-786, 20 NRC 1087, 1089-90 (1984) l

("a newspaper article alone does not provide a basis for reopening a l

closed adjudicatory record", citing Id., ALAD-753, 18 NRC 1321, 1324-05 (1983).

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UNITED STATES OF AMERICA ,07 Um 30 P 4 :32 NUCLEAR REGULATORY COMMISSION

'd BEFORE THE ATOMIC SAFETY AND LICENSING BOARDYdts Wj_,

In the Matter of )

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW IIAMPSHIRE, et al. --

) On-site Emergency Planning

) and Safety Issues (Seabrook Station, Units 1 and 2 )

, CERTIFICATE OF SERVICE l

I hereby certify that copies of "NRC STAFF'S RESPONSE TO INTERVENORS' JOINT MOTION FOR LEAVE TO FILE SUPPLEMENTAL OPPOSITION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 27th day of January,1987.

Sheldon J. Wolfe, Esq. , Chairman

• Dr. Errmeth A. Luebke Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board ,

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour Ms. Carol Sneider, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC 20555 Boston, MA 02108 Beverly Hollingworth Richard A. Hampe, Esq.

209 Winnacunnet Road New Hampshire Civil Defense Agency Hampton, NH 03842 107 Pleasant Street Concord, NH 03301 Sandra Gavutis, Chairman Calvin A. Canney, City Manager Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801 l

i Stephen E. Merrill Paul McEachern, Esq.

Attorney General Matthew T. Brock, Esq.

George Dana Bisbee Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Ofnce of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear Angie Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls 25 High Road Drinkwater Road Newbury, MA 09150 Hampton Falls, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 1 Exeter, FH 03833 Manchester, NH 03105 Charles P. Graham, Esq. Robert A. Backus, Esq.

McKay, Murphy and Graham Backus, Meyer & Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq. Philip Ahren, Esq.

Harmon & Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr., Esq.

Federal Emergency Management Agency Ropes & Gray 442 J.W. McCormack (POCH) 225 Franklin Street Boston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq. William Armstrong Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter 500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 l

l Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel

• Board

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 l

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's 5[ \ ,y Jane Doughty Docketing and Service Section* -

Seacoast Anti-Pollution League Office of thE;Secretcry -

5 Market Strect U.S. NuclearI Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555  ;

Maynard L. Young, Chairman William S. Lord Board of Selectmen Doard of Selectmen 10 Central Roa'd Town Hall - Friend Street South Hampton, NH 03287 i A'raesbury, MA 01913 c'

Michael Santocuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen .

City Hall South Hampton, NH 0328T Newburyport, MN 09150 Mr. Robert Carrigg, Chair' man Judith H. Mizner, Esq.

Board of Se1.ectmen Silverglate, Gertner, Baker Town Office '

s. Fine and Good Atlantic Avenue ' 88 ' Bread Street North Hampton, NH 03862 '

Boston, MA 02110 R. K. Gad III, Esq. Mrs. Anne E. Goodman, Chairman

- Ropes & Gray -Doard of Selectmen 225 Franklin Street 13-15 Newmarket Road Doston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq. '

Holmes & Ellis 47 Winnacunnet Road ,,

D' Hampton, NH 03842

" Sherwin E.* Turk *

, Senior Supervisory Trial i.

Attorneyi '

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