ML20236H457
| ML20236H457 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/27/1987 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#487-4718 ALAB-875, OL-1, NUDOCS 8711040139 | |
| Download: ML20236H457 (7) | |
Text
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o g p027, 1987 UNITED STATES OF AMERIA NUCLEAR REGULATORY COMMISSION 1
l before the OFFICE Uf SECRf TARY 00CKETE a SEi<vici,-
ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY
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Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, ET AL.
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50-444-OL-1
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(Seabrook Station, Units 1
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(Onsite Emergency Planning and 2)
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and Safety Issues) l
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i I
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APPLICANTS' RESPONSE TO ATTORNEY GENERAL JAMES M.
SHANNON'S PETITION FOR REVIEW OF l
ATOMIC SAFETY AND LICENSING' APPEAL BOARD DECISION OF OCTOBER 1, 1987, ALAB-875 Under date of October 16, 1987, the Attorney General of the Commonwealth of Massachusetts has filed a petition for review of a recent Appeal Board Decision, ALAB-875, in the above-captioned proceeding.
Three claims of error are made:
1.
It is claimed that the Appeal Board erred in not holding 10 CFR S 50.47(d) invalid.1 Petition at 3-4.
2.
It is claimed that the Appeal Board erred in not holding that a special Environmental Impact Statement (EIS) should be written to address low power operation at Seabrook 1
It is not claimed that the Appeal Board erred on its holding that it was without authority to invalidate a
regulation.
Rather the merits of the invalidity argument are now being made to the Commission.
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[-
l) O K
.,.e Station.
Petition at 4.
3.
It is claimed that the ' Appeal Board erred in affirming the ruling of the Licensing Board that the Seabrook Station Final Environmental Statement (SSFES) did not address adequately so-called " Class 9" accidents.
Petition at 5.
For the reasons set forth below, the Applicants say that the petition should be denied.
ARGUMENT l
1.
Validity of 10 CFR 6 50.47(d)
This matter is one of " law or policy."
This Commission has, on three separate occasions, upheld the validity of 10 I
CFR 5 50.47(d).
Lona Island Lichtina Co.
(Shoreham Nuclear Power Station), CLI-85-1, 21 NRC 275, 278 (1985); M., CLI-l 84-9, 19 NRC 1323, 1327 (1984); M., CLI-8 3 -17, 17 NRC 1032, 1034 (1983).
The concept of allowing low power operation for testing purposes before completion of a
full operating license hearing has been in the regulations of this agency and its predecessor for some 20 years, 10 CFR 5 50.57(c), and has never been questioned by the Congress.
No' novel issue of law or policy is presented.2 2.
The Sucolemental EIS The matter of the Supplemental EIS for low power 2
In addition, insofar as this petition seeks to raise the propriety of the Licensing Board's rejection of the 10 CFR 5 2.758 petition it should be rejected as. unappeasable even to the Appeal Board under the footnote to 10 CFR-5 2.758. b
o operation has been ruled upon, unfavorably to the position of the Attorney General, on at least two occasion by this Commission and once by the Courts.
Lona Island Liahtina Co.
(Shoreham Nuclear Power Station),
- 21. NRC 1587 (1985); -id.,
CLI-84-9, 19 NRC 1323, 1327 (1984); Cuomo v.
HB_Q, 772 F.2d 972, 974-76 (D.C. Cir. 1985).
Again-no novel issue of law or policy is presented.
3.
The FES Discussion of Class 9 Accidents The question of whether the discussion of Class 9
accidents in the FES is or is not in accord with the Commission Policy Statement is a question to be resolved by reading the discussion against the Policy Statement.
In the-sense that the two documents speak for themselves, the question to be resolved is one of law.-
However, to the extent that one claims the resolution is - erroneous because the tribunal making the comparison did not do its job i
correctly, one is. raising an issue of fact.
This is what the Petition does.
Yet it contains, because it'cannot on this record, no showing that the Appeal Board "has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the
[ Licensing Board)."
10 CFR S 2.786(b) (4) (ii).
If, on the 1
other hand, the Attorney General is claiming that the Policy statement required the types of discussions he lists on page-l 3 of his Petition, he is simply wrong.
See Interim Policy statement, 45 Fed. Reg. 40101 (1980), passim; ALAB-865,. slip I l
4 1
J pp. at 32-35.
CONCLUSION The Petition should be denied.
Respectfully submitted, Thom'as.G. Dignan, Jr.
3 George H.
Lewald 1
Kathryn A.
Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 l
Counsel for Acolicant l
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4 17 CT 30 P3:14 CERTIFICATE OF SERVICE I,
Thomas G.
Dignan, Jr.,
one of the attorne Ff6tftheyugv I
Applicants herein, hereby certify that on October Qg}tET/Ict, j
nade service of the within document by mailing copies i
thereof, postage prepaid, to:
j i
Lando W.
Zech, Jr., Chairman Thomas M. Roberts j
Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
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Kenneth M.
Carr Frederick M.
Bernthal l
Nuclear Regulatory Commission Nuclear Regulatory Commission l
Washington, DC 20555 Washington, DC 20555 Alan S.
Rosenthal, Chairman Haward A.
Wilber 1
Atomic Safety and Licensing Atomic Safety and Licensing
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Appeal Panel Appeal Panel j
U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Mr. Ed Thomas Appeal Panel FEMA, Region I U.S.
Nuclear Regulatory 442 John W. McCormack Post Commission Office and Court House Washington, DC 20555 Post Office Square Boston, MA 02109 Administrative Judge Shelton J.
Robert Carrigg, Chairman Wolfe, Esquire, Chairman Board of Selectmen Atomic Safety and Licensing Town Office Board Panel Atlantic Avenue U.S.
Nuclear Regulatory North Hampton, NH 03862 Commission Washington, DC 20555 Judge Emmeth A. Luebke Diane Curran, Esquire Atomic Safety and Licensing Andrea C.
Ferster, Esquire Board Panel Harmon & Weiss 550 Friendship Boulevard Suite 430 Apartment 1923N 2001 S Street, N.W.
Chevy Chase, MD 20815 Washington, DC 20009
I l
i Dr. Jerry Harbour Stephen E. Merrill, Esquire j
Atomic Safety and Licensing Attorney General j
Board Panel George Dana Bisbee, Esquire U.S.
Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General f
Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S.
Nuclear Regulatory Director j
Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission j
Washington, DC 20555 Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon i
U.S.
Nuclear Regulatory 116 Lowell Street
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Commission P.O.
Box 516
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Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J.
P. Nadeau
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Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 l
Augusta, ME 04333 Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O.
Box 360 One Ashburton Place, 19th Fir.
Portsmouth, NH 03801 Boston, MA 02108 j
Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manger RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J.
Humphrey Mr. Angie Machiros I
U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Peter S.
Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950
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1 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 l
H. Joseph Flynn, Esquire Brentwood Board of Selectmen I
Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A.
Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Judith H. Mizner, Esquire Charles P.
Graham, Esquire l
Silverglate, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main street i
l 88 Broad Street Amesbury, MA 01913 l
l Boston, MA 02110 i
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Thomas ~~G.
Dfghan, Jr.
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1 l __________