ML20235R525
| ML20235R525 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/01/1987 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235R527 | List: |
| References | |
| CON-#487-4534 OL-1, NUDOCS 8710080086 | |
| Download: ML20235R525 (6) | |
Text
'
N E9 October 1, 1
UNITED STATES OF AMERICA prf 7 r.:
c 00CnO,5';:'.
NUCLEAR REGULATORY COMMISSION f
- .4A t;;y before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, ET AL.
)
50-444-OL-1
)
(Seabrook Station, Units 1
)
(Onsite Emergency and 2)
)
Planning and Safety
)
Issues)
)
APPLICANTS' RESPONSE TO CONTENTION OF ATTORNEY GENERAL JAMES M. SHANNON, SEACOAST ANTI-POLLUTION LFAGUE, NEW ENGLAND COALITION ON NUCLEAR POLLUTION AND TOWN OF HAMPTON, MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD Under date of September 21, 1987, the Attorney General for the Commonwealth of Massachusetts (Mass AG) filed a six page document entitled " contention of Attorney General Jamer_
M. Shannon. Seacoast Anti-Pollution Leaaue. New Encland Coalition on Nuclear Pollution and Town of Hamoton. Motion to Admit Late Filed Contention and Reocen the Record."1 The 1The pleading is signed by an Assistant Attorney General of the Commonwealth who has appeared for Mass AG.
In addition, that same Assistant Attorney General has signed as the " authorized representative" for Seacoast Anti-Pollution League, New England l
Coalition on Nuclear Pollution, and Town of Hampton even though this Assistant Attorney General has filed no appearance on behalf of these other interveners in this proceeding.
Thus, insofar as t
87100B0086 871001 g
PDR ADOCK 0500 3
o i
l l
pleading seeks the reopening of the evidentiary record in this proceeding, the admission of a late filed contention, and an adjudicatory proceeding thereon.
The gravamen of the motion is the recent action of the City of Newburyport, Massachusetts in removing city-owned sirens which were intended to be utilized as part of the early notification system for Seabrook Station.
Mass AG argues that this is 1
grounds for reopening the record and withholding authorization for low power operation until "the Applicants have demonstrated the means to provide early notification and clear instruction to the populace in the City of Newburyport in the event of a radiological emergency."
For the reasons set forth below, the Applicants say that the motion to reopen should be denied.
A. THERE EXISTS A SUBSTANTIAL QUESTION AS TO THIS BOARD'S JURISDICTION TO ENTERTAIN THE MOTION As of the time that the Motion was filed, this Board clearly lacked jurisdiction, absent an Appeal Board order so permitting, to entertain the Motion at bar.
This is so because, having rendered its decision upon all matters committed to its jurisdiction in its Initial Decision then on appeal, no jurisdiction still resided with this Board.
Metropolitan Edison Comoany (Three Mile Island Nuclear all movants other than the Mass AG are concerned, this pleading should be dismissed on the ground that these entities are not properly represented with respect to it.
10 CFR S 2.713; MEMORANDUM AND ORDER (Denying Petition to Waive Regulations)
(Aug. 20, 1987) at 2 - 3.
2
i Station, Unit No. 1), ALAB-699, 16 NRC 1324, 1327 (1982) and cases there cited;.Georaia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-859, 25 NRC 23, 27 (1987).
The Appeal Board has now rendered a decision in which it has remanded certain issues 2 to this' Board.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
3 ALAB-875, 26 NRC It might be argued that this remand confers jurisdiction on this Board to entertain the Motion.
However, the law is that on remand, a Licensing Board only has jurisdiction of the specific matters remanded to it.
)
Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant, Units 1 - 4), ALAB-526, 9 NRC 122, 124 (1979);
Portland General Electric Co (Trojan Nuclear Plant), ALAB-x 534, 9 NRC 287, 289-90 n.6 (1979).
It is respectfully -
i submitted that this Board remains without jurisdiction to entertain this Motion.
B. THE MOTION TO REOPEN SHOULD BE DENIED ON THE MERITS The criteria for granting a motion to reopen a closed evidentiary record are set forth in 10 CFR $ 2.734.
The required showing is that the motion be timely, address a significant safety issue, and " demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially."
10 CFR 2Not including certain siren issues regarding which it has retained jurisdiction.
3
6' I
c 5 2.734(a).
In addition, where, as here, the reopening is for.the purpose of raising a late filed contention, the motion."must also satisfy the requirements for nontimely contentions in 52.714 (a) (1) (1) through-(v)."
10 CFR 5 2.734(d).
Mass AG does make an attempt to satisfy the tests under 10 CFR S 2.714 (a) (1).
However, it is respectfully submitted that he fails to do so.
As to the first factor, tlimeliness, it is clear that the Mass AG knew or should have known as long ago as June 30, 1986, that the City Council of Newburyport had voted to deny cooperation in the Seabrook emergency planning effort and he could have brought up the question of the continued viability of the sirens as an available resource for prompt notification as early as then.
I See EEUQEANDUM AND ORDER (Denying Mass.' Motion of January 12, 1987) (Feb.
6, 1987)/at 4.
The second and fourth factors,3 as usual, weigh in favor of admission of the late filed contention, but they are entitled to less weight than the other factors, gammonwealth Edison Comoany (Braidwood Nu, clear Power Station, Units 1 and.2), CLI-86-8, 23 NRC 241,
/
245 (1986); South Carolina Electric and Gas Company Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 l
(1981).
3 Availability of other means to protect the petitioner's interest; the extent to which the petitioner's interest will be represented by another party.
4
,r i
f
,iy !,
s 1
With^ respect to the third factor,4 MassAGhhsdoneno more than supply the name of a fact witnapp/ Tria names of additional witnesses not havin beengivenwhtycouldsupply expert testimony, the third factor r.ust weigh dpinut l
>^
_O admission of the contention.
MEMORANDUM AND OMEB (Feb.
8, i
g 1987), suora, at 5; CLI-86-8, supra, at 246-47.
Finally as i
to the fifth factor,5 it is obvious that the initial decision T/
1 having been rendered and the whole case being now on appeal, I
p 1
ja the fifth factor weighs agains admissionofthecontentio],['
Prescinding from the "*ive factors" test under 10 CFR
'j
(
> d i
p 2.714 (a) (1), Mass AG has also failed to satisfy the other
)
s s
criteriaunder10CFR52.73t;.
The motion is not timely for
)
',Y
':.4 V
the reasons already discussed.
Furthermore, the motion doedd
\\
i not involve a significant safety insuW nor does it U
demonstrate that a different result is likely.
l To begin with, the entire issue of siren audibility and operability can properly be left to Staff oversight.
l Louisiana Power and Licht Co. (Waterford Steam Electric j
Station, Unit 3), ALAL-732, li NRC 1076, 1104-05 (1983).
This is so because siren audibility'and operability are measurable against wholly objective standards.
That the
]
issue is insignificant and '*. hat the result will not change is 7
further demonstrated by the af fidavits of James A. ' thcDonald and Louis C.
Sutherland filed herewith.
Those affidavits 4 Assistance in developing a sound record.
5 Broadening of issues and delay of the proceeding.
5
7_
c;.-
,i
- bky, hg describe the alternate alerting procedure that the Applicants s?L
'/
have put in place'to/te.a1 with the Newburyport situation.
It
' includes the use of an aircraft to give notice to the citizenry of Newburyport as well as back-up methods in the event that the aircraft cannot fly in a'given instance.6 CONCLUSION i
The Motion to reopen should be denied.
By their attorneys, s,
f) n W
/ ll W 6. Dig %, Jr.
t, George H. L$wald g
t Kathryn A. Selleck Ropes & Gray yB.
225 Franklin Street Boston, MA 02110
-l (617) 423-6100
'e
,i j
1 i
4 h-V 6Use of aircraft to serve as the prompt notification l
device has been approved in other cases.
See Sputhern California Edison Co. (San Onofre Nuclear Generating Station, y
Units 2 and 3, ALAB-717, 17 NRC 346 (1983) ; Pacific Gas and Y/,'.
Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 j
m and 2), LBP-82-70, 16>NRC 756 (1982).
j
.g^ ' j.p '"t -
? i';
j
,i 6
f s