ML20235M324
| ML20235M324 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/10/1987 |
| From: | Curran D HAMPTON, NH, HARMON & WEISS, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235M300 | List: |
| References | |
| OL, NUDOCS 8707170155 | |
| Download: ML20235M324 (7) | |
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July 10, 1987 UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'87 J115 A11 :40 EL 4
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U" In the Matter of
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4 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
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INTERVENERS' JOINT REPLY TO THE NRC STAFF'S OPPOSITION TO ATTORNEY GENERAL SHANNON'S MOTION FOR
SUMMARY
DISPOSITION On June 11, 1987, Massachusetts Attorney General James M.
y l
t Shannon filed a motion for partial summary disposition on Town of Hampton Revised Contention VIII, SAPL Contention 16, and NECNP Contention RERP-8, all of which concern, inter alia, the adequacy of the New Hampshire Radiological Emergency Response Plan
("RERP") to protect the beach population in the Seabrook Emer-f gency Planning Zone.
Both Applicants and the NRC Staff oppose the motion.
Interveners New England Coalition on Nuclear Pollu-tion, Attorney General James M. Shannon, Town of Hampton, and the Seacoast Anti-Pollution League (hereafter " Interveners"), hereby reply to the NRC Staff's opposition to the Attorney General's motion for summary disposition.
The Staff's response is incor-rect and procedurally ' defective in several important respects.
NRC rules explicitly require any opposition to a summary judgment motion to include "a separate short and concise state-ment of the material facts as to which it is contended that there 6707170155 97071o PDR ADOCK 0b000443 G
PDR I
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, is a genuine issue to be heard."
10 CFR S 2.7 4 9 (a).
The NRC Staff's response contains no such statement.
Since it may surely t
be presumed that the Staff is well aware of the provisions of the i
rule, its failure to do so cannot be attributed to inadvertence.
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Indeed, tha Staff presents no stateaent of material facts becausa j
it has none to present.
The Board is not required to go any fur-ther; indeed, it is arguable that the Board is precluded by.the clear provisions of the above-quoted rule from considering the Staff's filing at all in the absence of a statement of material disputed facts.
However, should the Board decide to search the Staff's filing further, the search will confirm the absence of any alle'gation of genuine material issues of disputed fact which would justify denial of the nstant motion.
The Staff asserts three grounds in opposition to the Attorney General's motion.
The first, referencing the Affidavit of Edward A. Thomas in Opposition to Certain Motions for Summary Disposition (hereafter " Thomas Affidavit"), is that " FEMA has identified unresolved issues of fact within the scope of these contentions."
NRC Response to Summary Disposition Motions at 3.
The bare allegation that unspecified issues are " unresolved" does not remotely approach a statement of material disputed facts.
Virainia Electric and Power Co.- (North Anna Nuclear Power Sta-tion, Units 1 and 2), ALAB-584, 11 NRC 451, 453-55 (1980).
By the same token, the Thomas affidavit, provided as the Staff's sole support, wholly fails to demonstrate any real factual dis-l l
pute.
The affidavit merely states that FEMA "will consider any
facts presented by NRC" which might change its current position.
Thomas Affidavit, par.
9.
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Neither the Staff nor the affiant suggest that any facts have yet been presented to FEMA which might cause a change 1.n its 1
conclusions, much less present these alleged facts to the Board and the parties.
It is clear that the filing constitutes at best a' statement of NRC's hope that future, unspecified facts might be forthcoming, and that FEMA would give those facts a favorable review.
Such speculation falls completely short of the Commis-sion's standard for defeating a summary disposition motion.
The rule clearly states that in response to this motion, the Staff "may not rest upon the mere allegations or denials of his answer" but must, by affidavit or otherwise, " set forth the specific facts showing that there is a genuine issue of fact."
10 CFR 5 2.749(b).
i The second ground presented by the Staff in support of its opposition to the Attorney General's motion is that the " FEMA position is inconsistent with that of the NRC's representative on i
the FEMA RAC [ Regional Assistance Committee]."
Staff Response at 4.
No affidavit is presented by the NRC representative in ques-tion, Dr. Bores, but simply a brief and totally conclusory quote from a letter sent by him to Mr. Thomas.
It should be noted in this regard that NRC r,ules require affidavits to " set forth such facts as would be admissible in evidence and shall show affirma-l tively that the affiant is competent to testify to the matters stated therein."
10 CFR 6 2.749(b).
This obligation to provide mis to establish the competence of the person Eelied upon some '
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. cannot be evaded by the expedient of simply failing to present a'n affidavit. 'The NRC has'provided no reason to believe that Dr.
Bores' opinions -- unspported by facts -- are reliable or com-petent.
In any event, the mere fact that a participant.in the RAC review, unsupported by facts, dissents from its conclusions, does not give rise to a genuine and material dispute in this proceed-ing.
The RAC's duties consist of assisting states in formulating emergency plans and assisting FEMA in the review of those plans.:
See 44 CFR Parts 350, 351.
FEMA, and not the RAC,.is responsible for making determinations on the adequacy of emergency planning for purposes of NRC review.
10 CFR 5 50.47(a), 44 CFR Part 350.
FEMA' considered the views of the RAC, including those of Dr.
Bores, before issuing its position document on June 5,-1987.
L Obviously, it rejected Dr. Bores' position.1 Moreover, the Staff makes no attempt to dispute the FEMA position document of June 5, 1987; nor does it claim to adopt Dr.
Bores' position or to vouch for the. truthfulness of the facts alleged in his letter of June 4, 1987.
Thus, the NRC has failed i
to demonstrate that it holds any factual dispute with the FEMA statements that support the Massachusetts summary disposition i
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The Bores letter, on which NRC relies for its assertion that a material factual dispute exists, was written on June 4, 1987.
FEMA issued its document entitled " Current FEMA Position on Admitted Contentions on New Hampshire Plans for Seabrook" on June 5,
1987.
According to FEMA counsel H. Joseph Flynn, Dr. Bores' views were considered by FEMA before it issued its position docu-ment.
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5-motion.2 Having raised no real dispute between the parties over this issue, the Staff's opposition constitutes nothing more than I.
an attempt to create a smokescreen so as to discourage the Board from ruling on Massachusetts' notion.
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Finally, in opposing the Massachusetts motion, the Staff asserts that the June 5 FEMA position document does not con-stitute an official " finding" on the adequacy of emergency plan-ning for Seabrook, and thus may not be relied on by the Board.
The Staff's argument flatly ignores the clearly established NRC precedent which allows Licensing Boards to consider FEMA's find ~
ings and testimony on the current status of emergency plans, before FEMA has issued its ultimate findings.
- See, e.g.,
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-776, 19 NRC 1373, 1378-82 (1984); Duke Power Co..
et alz (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 58, 78 (1985), and cases cited therein.
See also 44 CFR S 350.3 (f), which provides that:
Notwithstanding the procedures set forth in these rules for reaching a FEMA administrative approval of State and local plans, findings and determinations on the current status'of emergency preparedness around partic-ular sites may be requested by the NRC and provided by l
FEMA for use as needed in the NRC licensing process.
These findings and determinations may be based upon plans currently available to FEMA or furnished to FEMA i
by the NRC through the NRC/ FEMA Steering Committee.
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1 In fact, it is not clear from the Commission's regulations at 2
10 CFR 5 50.47 (a) (2) whether the NRC Staff has the authority to present a position that differs from FEMA's, in light of the fact that FEMA is the Staff's witness, upon whose testimony the Licensing Board must base its licensing decision.
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. The FEMA position document of June 5, 1987, was issued in response to precisely such a request for FEMA findings and determinations from the NRC.
By its order of May 4, 1987, the Licensing Board responded to ALAB-864 by specifically ordering the NRC Staff to provide a statement of FEMA's position on the interveners' contentions by June 5, 1987.
As made clear by the Appeal Board in ALAB-864, the purpose of obtaining a " full state-ment" of FEMA's position on the New Hampshire emergency plans was to allow the parties to make adequate preparation for the hear-ings.
ALAB-864 (May 1, 1987), slip op. at 21.
The NRC's attempt to undercut the validity of the position document on the ground that it is not an official " finding" is legally insufficient, and disingenuous in the face of the Licensing Board's and Appeal Board's requests for FEMA's position.
Moreover, the Staff's position on this issue is grossly inconsistent and self-serving.
At the same time that it urges denial of the Massachusetts motion on the ground that FEMA's position document of June 5, 1987, does not constitute an offical
" finding" as required by the regulations, the Staff supports Applicants' motion for summary disposition of two other conten-tions based on the conclusions expressed by FEMA in the same allegedly infirm document.
NRC Response at 3.
The unspoken rationale for the Staff's inconsistent position is that the Licensing Board may never grant summary disposition motions in favor of interveners, but must always wait indefinitely until scme unknown but hoped-for information comes along that will permit a victory for the operating license applicant.
Inter-l l
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' 1 venors, on the other hand, must fall if the current information I
i goes against them.
The Board should soundly reject the injustice and inconsistency of this position.
In summary, the NRC Staff has offered no valid reasons why Il the Attorney General's Motion for Partial Summary Disposition on TOH Revised Contention VIII, SAPL Contention 16, and NECNP Con-s tention RERP-8 should not be grant'ed.
The Board should therefore rule in favor of the Commonwealth.
Respectfully submitted on behalf of the above-named Interveners, 0
( A.J
' i D i'a n e C u r r a n HARMON & WEISS b09 I
Wa hi g on D C.
(202) 328-3500 July 10, 1987 I certify that on July 10, 1987, copies of the foregoing pleading were served by hand, overnight mail, or first-class mail on all parties to this proceeding, as designated on the service list which is attached to "Intervenor's Joint Motion for Leave to File Reply to the NRC Staff's Opposition to Attorney General Shannon's Motion for Summary Disposition," filed g is same day.
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Diane Curran l
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