ML20246H712

NRC Response to Intervenors Request for 1 Wk Housekeeping Stay of Issuance of Low Power License.* Request Should Be Denied Since Length of Stay Not Needed to Achieve Intended Purposes.W/Certificate of Svc

ML20246H712
Person / Time
Site:	Seabrook
Issue date:	05/09/1989
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#289-8583 CLI-88-10, OL-1, NUDOCS 8905160172
Download: ML20246H712 (10)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 MY 10 A8 58 BEFORE THE COMMISSION (( ,. ; ,

In the Matter of

Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW HAMPSHIRE, e_t,a,1.

t ) On-site Emergency Planning

. ) and Safety Issues (Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO INTERVENERS' REQUEST FOR ONE WEEK HOUSEKEEPING STAY M ISSUANCE OF LOW POWER LICENSE i

Gregory Alan Berry Counsel for NRC Staff May 9, 1989 8905160172 890509 PDR ADOCK 05000443 G PDR

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UNITED' STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

BEFORE THE COMMISSION

.- In'the Matter of l

Docket Nos. 50-443 OL-01 E PUBLIC SERVICE COMPANY OF 50-444 OL-01

. .NEWHAMPSHIRE,etal. ) On-site Emergency Planning and Safety Issues

)

(Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO INTERVENERS' REQUEST FOR ONE WEEK HOUSEKEEPING STAY nr ISSUANCE OF LOW POWER LICENSE Gregory Alan Berry Counsel for NRC Staff

'May 9, 1989

i '

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION-In the Matter of )

Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 .

. NEW HAMPSHIRE, et al. On-site Emergency Planning  !

(Seabrook Station, Units 1 and 2) )

NRC STAFF. RESPONSE TO INTERVENERS' REQUEST FOR ONE WEEK HOUSEKEEPING STAY OF ISSUANCE OF LOW POWER LICENSE INTRODUCTION On May 8, 1989, the New England Coalition on Nuclear Pollution (NECNP), the Massachusetts Attorney General, and the Town of Hampton (collectively " Interveners") applied for a stay pendente lite of the issuance of a license authorizing low power operation of the Seabrook Station. See Interveners' Motion For A Stay Of Low Power Operation Pending Commission Or Appellate Review (May 8,1989) (hereinafter " Stay Motion"). In that motion Interveners request, inter alia, a one-week

" housekeeping" stay "following issuance of the Comission's decision

[ denying Interveners' stay motion], in order to provide them with sufficient time to seek a judicial stay of low power operation." Stay Motion at 2. Interveners ask the Commission to give " expedited consideration" to their housekeeping stay request and issue a decision on or before May 10, 1989, so they may, if necessary, seek judicial relief before the current stay 1/ expires. M. -

1/ See Commission Order of March 22, 1989 at 2 (unpublished).

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l L_________.-_

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l The NRC Staff opposes Interveners' request for a one-week

/; housekeeping stay. As explained below, the requested stay of this length 7

is not needed to achieve its intended purpose: to enable Interveners to

" file the necessary pleadings with the U.S. Court of Appeals." See Stay I

Motion at 2.

DISCUSSION Interveners state that the requested one-week housekeeping stay is needed "to provide them with sufficient time to seek a judicial stay of low power operation." Stay Motion at 2. Nowhere in their motion, however, do they provide any bases for their claim that a stay of this length is essential to enable them to " file the necessary pleadings with the U.S. Court of Appeals." I_d . Interveners cannot make such a showing because, as discussed below, they are, and have been for some time, in a position to fully prepare an application for judicial relief from any Commission order authorizing the issuance of a low power license for the Seabrook Station.

Although Interveners' motion is silent on this point, it appears from the instant stay application and the stay application which they filed on September 6, 1988 E , that Interveners intend to make the following arguments in support of a judicial stay of low power operation: (a) that the Comission's proposed rule change on public notification systems is arbitrary, capricious, and contrary to law; (b) that the Commission's denial of their various petitions for waiver of the Commission's financial

-2/ See Joint Interveners' Application For Stay Of Order Authorizing Isiiuance Of Low-Power License (September 6,1988).

qualifications rules is arbitrary, capricious, and contrary to law; (c) that the issuance of a low power license for the Seabrook Station prior to the resolution of all issues material to full power operation violates the Atomic Energy Act and is arbitrary and capricious; (d) that a

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separate or supplemental environmental impact statement (EIS) must. be prepared before a low power license can issue; and (e) that Applicants' decommissioning funding arrangements do not satisfy the requirements of CLI-88-07 and CLI-88-10.

Each of these arguments is legal in nature and thus susceptible to immediate preparation and presentation. Indeed, three of these arguments already have been fully briefed before the Commission. See e.g. Attorney General James M. Shannon's Application For A Stay Of Licensing Board Order Authorizing Issuance Of Operating License To Conduct low Power Operations at 3-5, 6-8 (May 13, 1987) and NECNP Motion For A Stay Of Low Power Operation Pending Full Power Decision Or Appellate Review at 3-7 (May 14, 1987) (arguing that a separate EIS must be prepared prior to low power operation and that the Commission lacks the legal authority to authorize the issuance of a low power license prior to the resolution of all issues affecting off-site emergency planning); Massachusetts Attorney General's j Motion For Reconsideration Of CLI-88-10 (December 27, 1988) and NECNP, SAPL, And Town Of Hampton Motior:er Reconsideration Of CLI-88-10 (January 5, 1989) (arguing that the Commission's disposition of their financial qualification waiver petitions was not in accordance with law). Thus, there can be no merit to any suggestion that the requested one-week housekeeping stay is needed to research and brief these issues.

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( Interveners also should be prepared to present at this time the reasons. why they believe that the Commission's adoption of the amendment to the proposed rule change on public notification systems or to deny the l

l Massachusetts Attorney General's waiver petition would be invalid. With l respect to the first point, it should be pointed out that it was exactly i 1

. one year ago today that the Commission first published the reasons supporting the proposed rule change on public notification systems. See 53 Fed. Reg. 16435 (May 9, 1988).

In fact, the only argument which Interveners have not had at least six months to prepare is the one challenging Applicants' compliance with the decommissioning funding requirements set forth in CLI-88-10. In this connection, it is significant to note that Interveners do not contend that funding arrangements proposed by Applicants do not satisfy the Comission's requirement that funding in the amount of $72.1 million be available to decommission the facility after low power operation in the event a full power license is denied. See Stay Motion at 7-8. Rather,  !

Interveners argue only that "the surety would not be obligated if Applicants withdrew their application for a full power license [ ]" I_d. at

7. Applicants submitted the surety bond in question on March 20, 1989; thus, Interveners have had nearly two months to develop any legal challenge to Applicants' decommissioning funding plan premised on this point. Further, Applicants explained the reasons for the language found objectionable by Interveners in a public meeting held April 20, 1989 whic.h counsel for the Massachusetts Attorney General attended. In these circumstances, it is apparent that Interveners have had ample time to formulate and prepare their challenge to Applicants' compliance with the

l requirements set forth in CLI-88-10. The requested one-week housekeeping stay is not needed for this purpose. Interveners' request therefore should be denied. 4 l

CONCLUSION I Interveners' request should be denied. '

Rgpictfullysubmitted, l

} I J. L Counsel f NRC aff f W

Dated at Rockville, Maryland this 9th day of May 1989 6

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mm 00t H.Eif D UNITED STATES OF AMERICA 4 NUCLEAR REGULATORY COMMISSIOP(89 MY 10 . A8

, BEFORE THE COMMISSION-In the Matter of ) hI[bb 75 a ' > ' '

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01

. NEW HAMPSHIRE, et al. --

On-site Emergency Planning and Safety Issues

'(Seabrook Station, Units 1 and ?)

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO INTERVENERS' REQUEST FOR ONE ' WEEK ' HOUSEKEEPING STAY _0F ISSUANCE OF LOW POWER LICENSE" in the above-captioned proceeding .have been served on the following by deposit in the United States mail, first class or, as. indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by double asterisks, by'telecopier this 9th day of May 1989:

Samuel J. Chilk~(16)* .

Peter B.'Bloch, Chairman

• Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Alan S. Rosenthal,' Chairman

• Administrative Judge Dr. Jerry Harbour

• Atomic Safety and Licensing Appeal Administrative Judge Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Thomas S. Moore

• Dr. Emmeth A. Luebke Administrative Judge Administrative Judge Atomic Safety and Licensing Appeal 4515 Willard Avenue Board Chevy Chase, MD 20815 U.S. Nuclear Regulatory Commission Washington, DC 20555 Thomas G. Dignan, Jr., Esq.**

Robert K. Gad, III, Esq.

Howard A. Wilber* Ropes & Gray Administrative Judge One International Place Atomic Safety and Licensing Appeal Bostr MA 02110 Board

, U.S. Nuclear Regulatory Commission Washington, DC 20555 i

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Philip Ahrens, Esq. Judith H..Mizner, Esq,

. Assistant Attorney General 79 State Street Office of_ the Attorney General- Newburyport, MA 01950 State. House Station

, - Augusta, ME 04333 Robert.Carrigg, Chairman Board of Selectmen

- Stephen A Jonas, Esq.** . Town Office _. j

. Assistant Attorney General Atlantic Avenue -J Office of'the Attorney General North Hampton, NH 03862- l One Ashburton Place,19th Floor Boston, MA 02108

William S. Lord Board of Selectmen Geoffrey Huntington, Esq. Town Hall . Friend Street Assistant Attorney General Amesbury, MA' 01913-Office-'of the Attorney General-25 Capitol Street Mrs. Anne E. Goodman, Chairman Concord, NH 03301 Board of Selectmen 13-15 Newmarket Road Diane Curran, Esq.** _

Durham, NH- 03824

- Harmon Curran & Tousley 2001 S Street, NW Hon. Gordon J. Humphrey Suite 430 United States' Senate Washington, DC 20009 531 Hart Senate Office Building Washington, DC 20510 Calvin A. Canney City Hall- Peter J. Matthews, Mayor 126 Daniel Street City Hall Portsmouth, NH 03801 Newburyport, MN. 01950 Allen Lampert Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Brentwood South Hampton, NH 03827 20 Franklin Exeter,.NH 03833 Ashod N. Amirian, Esq.

Town Counsel for Merrimac

- William Armstrong 145 South Main Street Civil Defense Director P.O. Box 38 Town of Exeter Bradford, MA 01835 10 Front Street Exeter, NH 03833 Robert A. Backus, Esq.**

Backus, Meyer & Solomon Gary W. Holmes, Esq. 116 Lowell Street Holmes & Ellis Manchester, NH 03106 47 Winnacunnet Road

. Paul McEachern, Esq.**

J. P. Nadeau Shaines & McEachern Board of Selectmen 25 Maplewood Avenue 10 Central Street- P.O. Box 360 Rye, NH 03870 Portsmouth, NH 03801 J

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___.m.__..___m._.____ ______-----m__

9 l Charles P. Graham, Esq. Atomic Safety and Licensing McKay, Murphy & Graham Appeal Panel (5)*

100 Main Street ~ U.S. Nuclear Regulatory Comission Amesbury, MA 01913 Washington, DC 20555 Sandra Gavutis, Chairman Atomic Safety and Licensing Board Board of Selectmen Panel (1)*

. RFD #1, Box 1154 U.S. Nuclear Regulatory Comission

,' Kensington, NH 03827 Washington, DC 20555

R. Scott Hill-Whilton, Esq. Docketing and Service Section*

Lagoulis, Clark, Hill-Whilton Office of the Secretary

& McGuire U.S. Nuclear Regulatory Commission 79 State Street Washington, DC 20555 Newburyport, MA 01950 Barbara J. Saint Andre, Esq.

H. J. Flynn, Esq. Kopelman & Paige, P.C.

Assistant General Counsel 77 Franklin Street Federal Emergency Management Agency Boston, MA 02110 500 C Street, S.W.

Washington, DC 20472 O.

Gregory' lan Fry Counsel or N Staff

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