ML20214W091

Responds to to Chairman Zech Re ASLB Order Which Reflected Predisposition of Board on Ultimate Issue of Adequacy of Plant Emergency Plan.Served on 861208

ML20214W091
Person / Time
Site:	Seabrook
Issue date:	10/24/1986
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Kerry J SENATE
Shared Package
ML20214W066	List: ML20214W063 ML20214W091
References
OL, NUDOCS 8612100079
Download: ML20214W091 (2)

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. UNITED STATES t NUCLEAR REGULATORY COMMISSION SERVED DEC -81986

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The Honorable John F. Kerry United States Senate Washington, D.C. 20510

Dear Senator Kerry:

Your letter of September 29, 1986 to Chairman Zech has been referred to me for response. You expressed your great concern that a recent order of the Atomic Safety and Licensing Board in the Seabrook licensing proceeding reflected a predisposition of the Board on the ultimate issue of the adequacy of the Seabrook ,

emergency plan. You also referred to the matter of sanctions imposed by the Board, but said that you had direcced correspondence to the Board itself. Because your letter touched on some of the issues before the Board, the Office of the Secretary has served the letter on the parties to the proceeding.

Pursuant to the Atomic Energy Act, the Administrative Procedure Act, and the Commission's regulations, the Commission's licensing decisions for nuclear reactors are made in on-the-record adjudications. As your letter reflects, it is of the utmost importance that the Commission's Boards, as well as the Commission itself, serve as impartial judges in the quasi-judicial proceedings over which they preside. The Commission expects its Boards to approach contested safety questions with an open mind and to decide them on the basis of the evidence in the record. It expects that all matters before them will be considered carefully and treated fairly. Therefore, it is particularly unfortunate and regrettable when a phrase from a presiding board's ruling can be interpreted in the manner you suggest, although it may be susceptible to other interpretations as well.

In the adjudicatory on-the-record format adopted for our licensing decisions, it is essential to the integrity of the process that the Boards respond to matters before them in the first instance. The procedures provide various avenues for dissatisfied parties to ceek relief. For example, in the canctions matter to which you referred, in response to several parties' motion for reconsideration, the Board in some cases modified or withdrew the orders, and explained that its original order was not a dismissal but a more limited sanction than it appeared to the parties. _

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Hon. John F. Kerry 2 The process also provides for appellate review within the Agency.

As you are aware, judicial review in the United States Courts of Appeals is available for final agency decisions.

I trust you will understand that any Commission decision will be part of the formal adjudicatory process and accordingly, that no more specific response can be provided at this time.

Sincerely, A  % 0 ,A. 2A - .

William C. Parler General Counsel l

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a JOHN KERRY

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idnited J5tates J5tnatt WASHINGTON, DC 2051o September 29, 1986 Mr. Lando Zech Chairman U.S. Nuclear Regulatory Comission Washington, D.C. 20555

Dear Mr. Zech:

I am writing to express my great concern over a recent order by the Atomic Safety Licensing Board regarding the Seabrook Nuclear Power Plant.

On September 11, the ASLB ordered that four Massachusetts comunities be barred from presenting testimony or cross-examining ,

witnesses during licensing proceedings for their failure to answer interrogatories. My objections to that ruling have been expressed directly to the Board.

However, I am writing to the Commission for their response to the statement within that order, "If the radiological emergency response plans which will ultimately be in place for these comuni-ties are to be the best that they can be..." I am deeply disturbed that a board whose statutory responsibility is to determine whether evacuation plans exist which adequately protect public health and safety has determined that plans will be approved before the proceedings have begun.

As you may be aware, Governor Dukakis recently determined, after careful consideration, that he cannot responsibly submit emergency evacuation plans which would adequately protect the public. The Nuclear Regulatory Comission, under P.L.96-295 and its own regulations, has clearly defined the state's role as integral to evacuation plans, and the Board must be able to consider this with the seriousness it deserves. All of the Massa:husetts communities within a 10-mile radius of the plant have arrived at the same detennination, and I strongly suggest that it is the ,

responsibility of the Atomic Safety Licensing Board to be mindful of the regulations and to pay careful attention to state and local authorities on this issue.

As stated above, I am deeply concerned a ut possible predis-position by the Board on this issue, and I e g rly await your response.

Si e re ,

ohn F. Kerry j United States S ator JFK:tmc

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onm' Cocket Nos. 50-443-OL so-444-o' Enited fi5tates #5tnate WASHINGTON, oC 20510 l

l September 29, 1986 Helen Hoyt. Esq., Chairman Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Washington, D.C. 20555

Dear Judge Hoyt:

I am writing to express my strong objection to the ruling of September 11, 1986 by the Atomic Safety Licensing Board prohibiting four Massachusetts communities from participating in upcoming pro-ceedings on the licensing of the Seabrook Nuclear Power Plant. I have very serious concerns with both the legality and fairness of this decision.

Although the comunities of Amesbury, Newbury, Salisbury, and Newburyport did not respond to interrogatories, the Town of Amesbury filed a motion for protective order on July 1, 1986. The Atomic Safety Licensing Board has not ruled on this motion, but chose to rule on the Applicant's motion for sanctions against the Town on August 20, 1986, which erroneously stated that none of the cities and towns "... sought any other relief from the order." The Board also erroneously states that "No response by any of the named cities or towns was filed with the Board in response to our granting the Motion to Compel and a search by the Commission's Docketing and Service Section... disclosed that no response by these cities or towns had been served." It is difficult to believe that the ASLB was unaware of the motion for protective order, as they were at least notified of it in NRC Staff Counsel Robert Perlis' letter to the Board of July 21, 1986. However, the NRC Staff recommendation on the motion for sanctions of September 9 also fails to mention Amesbury's petition.

I am also deeply disturbed by the severity of the sanctions imposed on these communities. The Statement of Policy on Conduct of Lincensing Proceedings provides the following guidance to the Board on the imposition of sanctions, In selecting a sanction, boards should consider the relative importance of their unmet cbligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurance is an isolated incident or a part of a pattern of behavior, the importance of the safety or environ-mental concern raised by the party, and all of the circumstances.

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None of these comunities filed contentions, and only the town of Amesbury indicated its interest in participating in the hearing regarding two contentions, which were dismissed by the Board. The question of their participation in the New Hampshire portion of the proceedings therefore had alreadi been decided. As none of these comunities were planning to take a position before the Board on these contentions, the Board should consider whether they should have been relieved from having to respond to interrogatories.

Further, these comunities were directed to respond to interroga- ,

tories regarding possible contact.between the Massachusetts Attorney i General's Office and towns in New Hampshire, information unrelated to safety or environmental concerns. No additional information 1 pertinent to the New Hampshire evacuation plans has been withhel'd, '

and I believe that the sanctions imposed are extreme in their seve-rity. Massachusetts comunities have planned to take an active role in the proceedings that pertain to Massachusetts, and they should be allowed to participate.

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Lastly, the opinion of the Atomic Safety Licensing Board that evacuation plans "will ultimately be in place" is of gravest concern to me. The Board implies in its ruling that communities which have chosen not to participate in evacuation planning are irresponsible, when in fact the determination that no evacuation plan can adequately protect the public health and safety is highly responsible, and must be entertained by the Board. I am deeply distressed that the Board seems to have precluded the decision that no plans may be able to adequately protect the public in the event of an accident at Seabrook.

I have asked the Nuclear Regulatory Comissioners, under separate cover, for a full explanation as to how the Board's opinion on this matter can be reconciled with the proper exercise of the Atomic Safety Licensing Board's responsibility.

I strongly urge the Board to reconsider its ruling and to act favorably on appeals filed by the Massachu ts comunities in question. I eagerly await your response lis matter.

S' n er ly, ohn F. Kerry ator 7nitedStatesS JFK:tmc

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