ML20214S198

NRC Staff Response to Jf Doherty Third Petition for Leave to Intervene.* Board Should Reject Petition for Lack of Jurisdiction & Failure to Satisfy Stds for Governing late- Filed Contentions.Certificate of Svc Encl

ML20214S198
Person / Time
Site:	Seabrook
Issue date:	05/29/1987
From:	Sherwin Turk Atomic Safety and Licensing Board Panel
To:
References
CON-#287-3651 OL, NUDOCS 8706090177
Download: ML20214S198 (11)

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5/29/87 cetEETE0 e' UWC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 Jm -4 P4 '4g BEFORE THE ATOMIC SAFETY AND LICENSING BOARDf0Cw;w F

ibI "#m In the Matter of )

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

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

NRC STAFF'S RESDONSE TO JOHN F. DOHERTY'S THIRD PETITION FOR LEAVE TO INTERVENE INTRODUCTION On May 11, 1987, John F. Doherty filed his " Third Petition for Leave to Intervene" (" Petition") pursuant to 10 C.F.R. I 2.714(a). In his Petition, Mr. Doherty presents a late-filed contention asserting that an operating license for Seabrook should be withheld, on the grounds that the Applicants are "unlikely" to operate the facility in compliance with NRC regulations (Petition at 2). In support of this contention, Mr.

Doherty asserts that the Applicants attempted to influence public opinion through media messages sponsored by a non-profit organization which l

they had created and funded, but failed to disclose that relationship to the public; such disclosure allegedly would have required the allocation of l

" equal time" for opposing views to be presented, which might have I induced the media to refuse to carry the Applicants' messages (Id.,

at 3). In Mr. Doherty's view, the Applicants' " concealment" of this l

l relationship demonstrates a lack of trustworthiness and a willingness to miwal viviations of NRC regulations upon operation of the facility (Id.).

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l For the reasons more fully set forth below, the Licensing Board should reject the Petition for lack of jurisdiction. Further, even if the f

Board had jurisdiction to consider the Petition, it should be rejected for failing to satisfy the standards governing late-filed contentions and reopening the record. II DISCUSSION A. The Board Lacks Jurisdiction to Consider the Petition.

A Partial Initial DeciElon (PID) addressing all issues other than offsite emergency planning was issued by the "on-site" Licensing Board on March 25,1987,El and appeals of that decision are currently pending before the Appeal Board. The sole issues remaining before this Board relate to offsite emergency planning; all other matters are presently before the Appeal Board, in connection with its review of the PID.

Accordingly, the Licensing Board lacks jurisdiction to consider the instant Petition. See generally, Philadelphia Electric Co. (Limerick Generating Station , Units 1 and 2), ALAB-726, 17 NRC 755, 757-58 (1983);

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1),

ALAB-699,16 NRC 1324,1326-27 (1982); Virginia Electric and Power Co.

-1/ The Petition must also demonstrate standing and interest to intervene, pursuant to 10 C.F.R. I 2.714. However, in light of the discussion and conclusions set forth below with respect to jurisdiction and the standards governing late-filed contentions and reopening the record, it is unnecessary to address these other aspects of the Petition.

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Cee Public Service Co. of New Hampshire (Scabrook Station, Units 1 and 2), LD P-87-10 , 25 NRC (March 25, 1987), slip op. at 4.

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(North Anna Nuclear Power Station, Units 1 and 2), A LA B-551, 9 NRC 704, 708-09 (1979).

B. The Petition Fails to Satisfy the Late Filing Criteria.

A motion to admit a late-filed contention must satisfy the require-ments of 10 CFR 5 2.714(a)(1). That regulation requires a balancing of the following in determining whether to grant an untimely filing:

(i) Good cause, if any, for failure to file on time; (ii) The availability of other means whereby the petitioner's interest will be protected; (iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (iv) The extent to which the petitioner's interest will be represented by existing parties; (v) The extent to which the petitioner's participation will broaden the issues or delay the

. proceeding.

A balancing of these factors demonstrates that the Petition fails to satisfy the late filing criteria.

1. Good Cause for Failure to File On Time. .

The Petition does not indicate when the media messages in question were broadcast or when the Petitioner first learned of Applicants' involvement in financing the Coalition for Reliable Energy ("CFRE"), the non-profit organization which sponsored the media messages. However, the Petition concedes that CFRE revealed it had received $2.8 million from i

the Seabrook owners "at the end of January,1987" (Petition at 3); and it notes "there had been allegations Applicant had participated and financed CFRE from the start in 1986" (Id. , at 4).

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Under these circumstances, Mr. Doherty appears to have been on notice of the Applicants' involvement in funding CFRE at least since January 1987 -- and quite possibly earlier, when the " allegations" of this involvement came to his attention sometime in 1986. The fact that the Massachusetts Attorney General may not have received equal access time until April 1987 (Id., at 3-4), is immaterial; rather, the timeliness of the Petition must be assessed in light of when the Petitioner, using due diligence, could have learned of Applicants' relationship to CFRE.

Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

ALAB-828, 23 NRC 13,18, 21 (1986); Duke Power Co. (Catawba Nuclear Station , Units 1 and 2), ALAB-813, 22 NRC 59, 84-85 (1985);

Commonwealth Edison Co. (Braidwood Nuclear Power Station , Units 1 and 2), LBP-85-11, 21 NRC 609, 628-29 (1985), rev'd and remanded on other grounds, CLI-86-8, 23 NP.C 241 (1986). Accordingly, Petitioner has failed to demonstrate good cause for failing to file the Petition sooner.

2. Other Means to Protect Petitioner's Interest.

The Petition does not address this issue; however, the Staff does not contend that other means are available to protect Petitioner's interest.

Accordingly, this factor may be found to weigh in favor of the Petition.

3. Contribution to the Development of a Sound Record.

The Petition asserts that Mr. Doherty "has had extensive experience in Commission licensing proceedings and is a recent law school graduate" (Petition at 5). However, the Petition does not identify any witnesses whom the Petitioner might call to testify, and fails to summarize the testimony which they may be expected to present; the Petition thus fails

s to provide the specification required under this criterion. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18

- NRC 387, 399-400 (1983); Mississippi Power a Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NRC 1725 (1982). In this regard, the Petitioner must identify his prospective witnesses and demonstrate affirmatively that they, not the Petitioner, are likely to assist in the development of a sound record. Shoreham, supra, 18 NRC at 400-01; Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167,1177-78 (1983). Further, the movant's legal skills and familiarity with NRC proceedings are immaterial in connection with the evaluation of this factor. Commonwealth Edison Co.

(Braidwood Nuclear Power Station , Units 1 and 2), CLI-86-8, 23 NRC 241, 246-47 (1986); WPPSS, supra; Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC

. 508, 513 n.14 (1982). Accordingly, this factor weighs against the Petition.

4. Representation of Petitioner's Interest By Other Parties.

The Staff concedes that other parties may not be expected to represent Mr. Doherty's interests. Accordingly, this factor weighs in favor of the Petition.

5. Broadening and Delay of the Proceeding.

The' Petition concedes that admission of this late-filed contention j "would broaden and lengthen the proceedings" (Petition, at 5). It should be noted that contention raises an issue that has not been litigated

! previously in this proceeding; the record has been closed since October

! 1986; and a PID has already been issued. Further, a low power license

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e has already been authorized and could be issued once the Commission completes its review of Applicants' motion to vacate CLI-87-02 as moot.

Accordingly, this factor weighs against the Petition.  ; '

In sum, factors 1, 3 and 5 weigh against the Petition, while the less important factors, factors 2 and 4, weigh in its favor. This balancing demonstrates that the Petition fails to satisfy the standards governing the admission of late-filed contentions.

C. The Petition Fails to Satisfy the Standards for Reopening.

10 C.F.R. 5 2.734, which codifies prior NRC practice, - requires that a motion to reopen the record be denied if it is untimely, if it fails to address a significant safety or environmental issue, or if it fails to demonstrate that a materfally different result would be or would have been likely had the newly proffered evidence been considered initially.

Further, the motion is required to be accompanied by an affidavit which sets forth the factual and/or technical bases of the proponent's claim that these three criteria have been satisfied. The Petition fails to satisfy these requirements. II

1. The Petition Is Untimely.

For the reasons discussed above with respect to " good cause" under 10 C.F.R. 5 2.714(a), the Petition was not filed in a timely fashion.

-3/ Sec Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-86-18, 24 NRC 501, 500 n.2 (1986); 51 Fed. Reg. 19535, 19539 (1986).

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-4/ It should be noted that the proponent of reopening the record bears g, I;ansas Gas and Electric Co. (Wolf a heavy burden. See, e Creek Station , Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978).

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2. Significance of the Issue.

The Petition asserts that the Applicants' trustworthiness to operate a nulcear plant in compliance with NRC regulations is called into; question by their failure to disclose their relationship to CFRE, the non-profit organization which sponsored the pro-Seabrook media messages. This assertion fails to present a significant safety or environmental issue.

While contentions concerning an applicant's trustworthiness to operate a nuclear plant may be admitted for litigation in an operating license proceeding, no such issue is presented here. Even if the facts alleged in the Petition as to Applicants' actions are accepted as true, those actions are simply too insignificant and remote to have any bearing on the determination as to whether the Applicants will operate a nuclear plant in compliance with NRC regulations. See generally, Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 3~1 (1985).

3. Likelihood of Causinar A Materially Different Result.

As set forth above, the Petition fails to present a significant safety or environmental issue. Accordingly, the Petitioner has failed to l

demonstrate that a materially different result would have been reached by

! the on-site Licensing Board if the Petition had been filed before the close j of the record. See, eg, Public Service Co. of New Hampshire (Seabrook Station, Unit 1), LBP-87-3, 25 NRC (February 6, 1987).

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In sum, the Petition is untimely, it fails to raise a significant safety or environmental issue, and fails to demonstrate that a materially different result vrould have been reached if the Petition had been filed prior to the close of the record. In addition , the Petition was filed without the

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supporting affidavit required by 10 C.F.R. I 2.734(b). Accordingly, the Petition fails to satisfy the standards governing the reopening of the record. .

CONCLUSION For the reasons set forth above, the Licensing Board should reject the Petition for lack of jurisdiction. Further, even if the Board had jurisdiction to consider the Petition, it should be denied for failing to satisfy the standards governing late-filed contentions and the standards for reopening the record.

Respectfully submitted,

, & $u S Y Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, Biaryland tilis 29th day of Blay,1987 l

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00(.hEiED UmRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 Jlli -4 P4 :48 BEFORE THE ATOMIC SAFETY AND LICENSING BOAg7,h j @7ld BH MD In the Matter of )

) Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, g al. ) Off-site Emergency Planning

)

(Seabrook Station, Unita 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of. "NRC STAFF'S RESPONSE TO JOllN F. DOHERTY'S THIRD PETITION FOR LEAVE TO INTERVENE" 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 29th day of May,1987.

Helen Hoyt, Esq. , Chairman

• Gustave A. Linenberger, Jr.*

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, Nil 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

y Stephen E. Merrill Paul McEachern, Esq.

Attorney General Matthew T. Brock, Esq.**

George Dana Bisbee Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Office 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 Exeter, NH 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 i 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 l H.J. Flynn, Esq. William Armstrong i 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 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

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Jane Doughty Docketing and Service Section* ,

Seacoast Anti-Pollution League Office of the Secretary  !

5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555 Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, NH 03287 Newburyport, MN 09150 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.

Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street North Hampton, NH 03862 Boston MA 02110 R. K. Gad III, Esq. Mrs. Anne E. Goodman, Chairman Ropes a Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq. Honorable Gordon J. Humphrey Holmes & Ellis United States Senate 47 Winnacunnet Road 531 Hart Senate Office Building Hampton, NH 03842 Washington, DC 20510 Sherwin E. Turk Senior Supervisory Trial Attorney l

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