ML20236T520

NRC Staff Response to 980709 Submittal by Seacoast Anti- Pollution League & New England Coalition on Nuclear Pollution (Necnp).* Board Should Deny Intervention by Necnp. Staff Does Not Contest Sapl Standing.W/Certificate of Svc

ML20236T520
Person / Time
Site:	Seabrook
Issue date:	07/27/1998
From:	Hom S NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19355 LA, NUDOCS 9807280237
Download: ML20236T520 (10)

Text

~ - - - - - - - -

,))355 00CMYith 1998

+

USHP,C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION'98 JJL 27 P1 :40 BEFORE THE ATOMIC SAFETY AND LICENSIM6 BOARD F i- 1Ili Hu.1.

gp~ g. p, u r.

yg In Ga Matter of )

) Docket No. 50443 LA NORTH ATLANTIC ENERGY )

SERVICE CORPORATION ) License No. NPF-86 (Seabrook Station, Unit 1) )

NRC STAFF'S RESPONSE TO JULY 9,1998 SUBMITTAL BY SEACOAST ANTI-POLLUTION LEAGUE AND NEW ENGLAND COAT fTION ON NUCI FAR POT f UTION '

Pursuant to the Memorandum and Order (Initial Order) dated June 18,1998, issued by the Atomic Safety and Licensing Board (Board), the NRC Staff hereby responds to the submittal dated July 9,1998, filed by the Seacoast Anti-Pollution 1.cague (SAPL) and the l

New England Coalition on Nuclear Pollution (NECNP) (July 9 submittal) to supplement

. SAPL's Jmie 5,1998 hearing $ uest. 1 As discussed below, the Board should deny intervention by NECNP; the Staff, however, does not contest SAPL's standing in this proceeding.

BACKGROUND L

By applicatkn dated April 8,1998, Nonh Atlanti: Energy Service Corporation l (NAESC or Licensee) requested amendments to the Facility Operating License No. NPF-86 technical specifications for Seabrook Station, Unit 1. The Licensee seeks changes to surveillance requirements 2nvolving steam generator tube inspections. SAPL filed its 9907280237 990727 f

{DR ADOCK0500g3 (p 7

i. .

I June 5,1998 hearing request, which was deemed timely by the Board,8 on the last day permitted by the Federal Register notice of the amendment r.; quest.2 There was no indication in the June 5,1998 bearing request that it was being filedjointly by NECNP as well as SAPL. No pleading was filed on behalf of NECNP until June 18,1998, when SAPL and NECNP filed an amended hearing and intervention request.8 On June 24,1998, the Staff, viewing the June 18 filing by SAPL and NECNP as,

. in part, an initial intervention request by NECNP, objected to NECNP's intervention request as untimely.' NECNP had failed to address any of the criteria set forth in 10 C.F.R. I 2.714(a)(1) applicable to untimely petitions. In a July 2,1998 filing, the Licensee also noted that NECNP's intervention request was untimely.s The July 9 submittal provided affidavits by members of SAPL and NECNP to support those organizations' standing, proffered contentions, and enclosed a memoranaim i of law to support the admissibility of certain of the proffered contentions. The criteria 8 Initial Order at 1.

l 2See 63 Fed. Reg. 25,102 (1998).

3 Supplemental and Amended Petition for Institution of Proceeding and for f Intervention Pursuant to 10 CFR 2.714 On Behalf of the Seacoast Anti-Pollution I.cague and the New England Coalition on Nuclear Pollution (June 18,1998).

'See NRC Staff's Answer to Seacoast Anti-Pollutionleague's June 5,1998 Request for a Hearing and to New England Coalition on Nuclear Pollution's June 18,1998 Request for Intervention (June 24,1998). >

5See North Atlantic Energy Service Corporation's Answer to Supplemental Petition for Hearing (July 2,1998).

1 I

1

<a applicable to late filed petitions for intervention at 10 C.F.R. I 2.714(a)(1) was still not expressly addressed by NECNP in the July 9 submittal.

DISCUSSION I. NECNP

\

The only response by NECNP to the Staft's assertion that NECNP has filed an untimely intervention petition is contained in the cover letter to the July 9 submittal.

There, NECNP argues, inter alia, that "there is no separate NECNP petition. NECNP is simplyjoining in the June 5th petition filed by SAPL, which the Board has already ruled as timely. NECNP is not raising any new contentions, bringing forth any matters not addressed in the June 5th filing, or using separase counsel."' NECNP further argues that the Staff or the Licensee will not be prejudiced if NECNP is allowed to intervene, that the only issue is what names will appear in the caption on pleadings, and that NECNP is "merely seekingjoinder pursuant 4b [ Rule 20 of the Federal Rules of Civil Procedure]."'

According to NECNP, the " Federal Rules apply, when, as here, the NRC has no rule on joinder." NECNP cites Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-96-16, 44 NRC 59, 62 (1996), and Cincinnati Gas & Electric Co. (Wm. H.

Zimmer Nuclear Power Station, Unit 1), LBP-82-47,15 NRC 1538,1542 (1982), in support of this proposition.

' Letter from R. Backus to Judge P. Cotter, Jr., et al. (July 9,1998) (Backus letter) at 2.

7Backus letter at 2.

The relevant discussion in the preceding cases actually is that where there is a procedural rule of the NRC analogous to a Federal rule, judicial interpretations of the Federal mle may serve as guidance in applying the NRC rule, but the Federal mies are not directly applicable to NRC proceedings. See Yogtle, 44 NRC at 62; Zimmer,15 NRC at 1542. Furthermore, notwithstanding NECNP's assertion that it is "merely seeking joinder pursuant to FRCP 20,"' the Atomic Safety and Licensing Appeal Board has confirmed that the " Federal Rules of Civil Procedure apply only in the district courts and Federal Rules 19 and 20 have no counterparts in Commissionpractice." PublicService Co. of Oklahoms (Black Fox Station, Units 1 and 2), ALAB-573,10 NRC 775,780 n.18 (1979).'

In Public Service Co. of New Hanpshire (Seabrook Station, Unit 2), CLI-84 6, j 19 NRC 975 (1984), SAPL, coincidentally, filed a motion seeking to join an intervention petition of the Connecticut Division of Consumer Counsel (DCC) filed in connection with l

an application to renew the Segbrook construction permit. The DCC petition was submitted in October of 1983; following the filing of answers by the Staff and the applicants to the petition, SAPL filed its motion for joinder in January of 1984. Just prior to the Comrcission's decision on the merits of the DCC petition, DCC effectively withdrew l

l l its petition. Seabrook,19 NRC at 977 n.1. Since SAPL had not withdrawn its joinder l .

j motion, the Commission decided to consider the DCC petition on its merits. Id.

'Backus Iktter at 2.

' Rule 19 of the Federal Rules of Civil Procedum pertains to "Joinder of Persons Needed for Just Adjudication," while Rule.20 addresses " Permissive Joinder of Parties."

I i

l _

r However, the Conunission stated that by doing so, it " expresses no opinion as to the procedural validity of SAPL's motion for joinder." Id. After finding that DCC's proffered contentions fell outside the scope of the proceeding, the Commission denied DCC's petition. In light of this denial, SAPL's motion for joinder was declared moct.

Id. at 979.

NECNP has failed to cite any Commission precedent for the position that NECNP

{

is espousing. NECNP is effectively asserting that as long as one intervenor has been admitted to a proceeding by reason of its timely petition, another person should be admitted, without regard for the deadline for timely filings, merely on the basis that such person later requests to " join" the original intervenor. To accept NECNP's position wouki l

! effectively undermine % i9 C.F.R. I 2.714(a)(1) criteria for late intervention petitions.

I Under 10 C.F E e 2.714(a)(1), nontimely filings will not be entertained absent a determination that the petition sh6uld be granted based on a balancing of the following factors (in addition to those contained in subsection (d)(1)):

l- (i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the

l. petitioner's interest will be protected.

(iii) The extent to which the petitioner's panicipation 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.

1 1

As stated earlier, NECNP has not expressly attempted to address the foregoing factors in the July 9 submittal or elsewhere. NECNP provides no explanation of " good l l

cause" why it did not file to intervene by the prescribed deadline of June 5,1998 (criterian 1 (i)). NECNP has not indicated that it will bring anything more to the proceeding to assist in developing a sound record (criterion (iii)). The July 9 submittal does suggest that if SAPL is admitted as a party, NECNP's interests would be essentially represented by I

SAPL, particularly since the contentions filed with the July 9 submittal are on behalf of l both SAPL and NECNP (criterion (iv)). See Backus letter at 2. All of the foregoing weigh against granting NECNP intervention. On the other hand, the Staff is not aware of any other proceeding or other means whereby NECNP's interests will be protected (criterion (ii)). In addition, NECNP has not suggested that it will attempt to raise separam issues in addition to those that SAPL seeks to raise, or otherwise delay the proHing (criterion (v)). Nevenheless, thesBoard should conclude that, balancing all of the above criteria, NECNP should not be permitted to intervene in this proceeding.

II. SAPL As previously discussed in the Staff's Answer dated June 24, 1998,50 the Commission has applied contemporaneous judicial concepts of standing in determining I

whether a petitioner should be permitted to intervene. When a license amendment involves an " obvious potential for offsite consequences," it has been held that living near the "See note 4 supra.

facility is enough to confer standing. Clewland Electric Illuminating Co. (Perry Nuclear i

! I i Power Plant, Unit 1), CLI-93-21,38 NRC 87, 95 (1993), citing Florida Power and Light {

l Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329-30 (1989).

In its July 9 submittal, SAPL has provided four afrulavits from members who have l authorized SAPL to represent them in this proceeding and who live less than two to less than ten miles from the facility. SAPL has also stated in its contentions that the l

amendment may cause a significant increase in the probability or consequences of an l

accident, and that the failure of steam generator tubes can result in an accident with offsite p

consequences. See, e.g., SAPL Contention 1 and Basis (attached to July 9 submittal).

Because the proposed amendment involves steam generator tube inspections, which, if not performed adequately, could lead to a scenario where there is an offsite release of l radioactivity, the amendment would appear to involve an " obvious potential for offsite l

l consequences."" Accordingly, the Staff does not object to interventionby SAPL, in light of its timely request for intervention and representation of potentially affected members who live in close proximity to the plant.

"The Staff, of course, is not addressing the merits of the amendment request at this time.

I

s i

l l

CONCLUSION In considerationof the foregoing, the Board should deny intervention by NECNP.

l The Staff does not contest SAPL's standing in this proceeding.

Respectfully submitted, l Steven R. Hom '

Counsel for NRC Staff Dated at Rockville, Maryland this 27th dsy of July 1998 s

t

r___________ . _ _ _

9 t

, UNITED STATES OF AMERICA ,

L NUCLEAR REGULATORY COMMISSION DOCKETED la USHRC l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-443 LA OFnn c er  ; -

s

! - NORTH ATLANTIC ENERGY ) RULRN,[ $ k

!- SERVICE CORPORATION ) License No. NPF-86 ADJUDiCAin A m;pp

. (Seabrook Station, Unit 1) )

CERTIFICATE OF SERVICE l

I hereby certify that copies of "NRC STAFF'S RESPONSE TO JULY 9,1998 SUBMITTALBY SEACOAST ANTI-POLLUTION LEAGUE AND NEW ENGLAND COAI ITION ON NUCLEAR POLLUTION" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class, as indicated by an asterisk, or by deposit in the Nuclear Regulatory Commission's internal mail system this 27th day of July 1998:

l I . B. Paul Cotter, Jr., Chainnan David A. Repka, Esq.*

. Atomic Safety and Licensing Board Winston & Strawn i Mail Stop: T-3 F23 1400 L Street, N.W.

! U.S. Nuclear Regulatory Commission Washington, D. C. 20005-3502 l

Washington, D. C. 20555

! Robert A. Backus, Esq.*

l Dr. Charles N. Kelber / Backus, Meyer, Solomon,

~ Administrative Judge Rood & Branch 1 i

Atomic Safety and Licensing Board 116 IAwell Street Mail Stop: T-3 F23 Manchester, New Hampshire 03105 l U.S. Nuclear Regulatory Commission

( Washington, D. C. 20555 Lillian M. Cuoco, Esq*.

Senior Nuclear Counsel

Linda W. Little* Northeast Utilities Service Company L Administrative Judge P. O. Box 270 Atomic Safety and Licensing Board Hartford, Connecticut 06141-0270 l

5000 Hermitage Drive Raleigh, North Carolina 27612

o Secretary (2) Adjudicatory File (2)

Attn: Rulemakings and Atomic Safety and Licensing Board Adjudications Staff Panel Mail Stop: 0-16 C1 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Office of Commission Appellate Atomic Safety and Licensing Board Adjudication Panel Mail Stop: 0-16 C1 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Steven R. Hom Counsel for NRC Staff i

1 I

I 4