ML20247E080
| ML20247E080 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/24/1989 |
| From: | Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#389-8944 ALAB-918, LBP-89-04, LBP-89-4, OL-1, NUDOCS 8907260076 | |
| Download: ML20247E080 (15) | |
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50-444 OL-01 PUBLIC SERVICE COMPANY OF.
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and Safety Issues (Seabrook Station, Units-1 and 2)
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NRC STAFF RESPONSE TO INTERVENERS' PETITION FOR REVIEW 0F ALAB-918 Gregory Alan Berry Counsel for NRC Staff July 24, 1989
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' NRC STAFF RESPONSE TO INTERVENERS' PETITION FOR REVIEW 0F ALAB-918 INTRODUCTION
)89, the Massachusetts Attorney General, the New England
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ar Pollution (NECNP), and the Seacoast Anti-Pollution
!1ectively " interveners") petitioned the Commission to i
M ursuant to 10 C.F.R. G Board's decision in ALAB-918 p
tition For Review of ALAB-918 (July 10, 1989).
In
' Company of New Hampshire (Seabrook Station, Units 1
-918, 29 N R C (June 20,1989).
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!.786(b) provides in pertinent part:
sn for review shall... contain the following:
y Encise summary of the decision or action of which review
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iought; tatement (including record citation) where the matters fact or law raised in the petition for review were riously raised before the Atomic Safety and Licensing
!al Board and, if they were not why they could not have i raised;
- concise statement why in the petitioner's view the k
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b UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BFFORE THE COMMISSION In the Matter of
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Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF
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50-444 OL-01 NEW HAMPSHIRE, ~et al.
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On-site Emergency Planning
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and Safety Issuet (Seabrook Station, Units 1 and 2)
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a NRC STAFF RESPONSE TO INTERVENERS' PETITION FOR REVIEW 0F ALAB-918 l
Gregory Alan Berry Counsel for NRC Staff July 24, 1989 s
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION i
In the Matter of
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Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01
!;EW HAMPSHIRE, e_t al.
On-site Emergency Planning and Safety Issues (Seabrook Station, Units I and 2)
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NRC STAFF RESPONSE TO INTERVEN0RS' PETITION FOR REVIEW 0F ALAB-918 INTRODUCTION On July 10, 1989, the Massachusetts Attorney General, the New England Coalition On Nuclear Pollution (NECNP), and the Seacoast Anti-Pollution League (SAPL) (collectively " interveners") petitioned ithe Commission to review the Appeal Board's decision in ALAB-918 1/ pursuant to 10 C.F.R. 5 2/
2.786(b).
Petition for Review of ALAB-918 (July 10, 1989).
In 1/
Public Service Company of New Hampshire (Seabrook Station, Units and 2), A L A B-918, 29 N R C (June 20,1989).
2/
10 C.F.R. Q 2.786(b) provides in pertinent part:
(2) A petition for review shall... contain the following:
(1) A concise sur, mary of the decision or action of which review is sought; (ii) A statement (including recori citation) where the matters of fact or law raiHc in the petition for review were previously raised before tne Atomic Safety and Licensing AppeaI Board and, if they were not why they could not have been raised; (iii) A concise statement why in the petitioner's view the l
(FOOTNOTE CONTINUED ON NEXT PAGE)
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ALAB-918, the Appeal Board affirmed LBP-89-04 3/,
which denied.
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I interveners' motion to admit a late-filed contention alleging deficiencies j
-in five "cnsite" aspects of an emergency preparedness exercise conducted '
on June 27-29, 1989.
j As explained below, Commissica review of ALAB-918 is not warranted under 10 C.F.R. 2.786(b)(4).
ALAB-918 did no more.than reaffirm two well l
established principles: (1) that a contention filed after the expiration of the time periods specified in 10 C.F.R. 0 2.714(b) may not be admitted for litigation unless a balancing of the five lateness facters weighs in favor of its admission and (2) that a contention challenging the results (FOOTNOTE CONTINUED FROM PREVIOLS PAGE decision or action is erroneous; and (iv)A concise statement why Commission 'reivew should be exercised.
(4) The grant or denial of a petition for review is within the discretion of the Commission, except that:
(i). A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the enviornment, the public health and safety,... involves an important procedural
- issue, or otherwise raises important questions of public policy; (ii) A petit %n for review of matters of fact will not be granted unless it appears that the Atomic' Safety and Licensing Appeal Board has resolved a factual issue necessary for decision in 6 clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board.
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Public Service Company of New Hamphsire (Seabrook Station, Units 1
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and 2), L B P-89-04, 29 N R C 62 (1989).
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1 of-an emergency planning exercise - may not 'be admitted for litigation g
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flaw in an applicant's emergency plan.
. unless 'it raises a fundamental Thus.. as explained in this response, interveners' petition for' review i
' does not raise any "important matter that could significantly affect the environment, the = public health. and safety" or present any "important procedural issue or question of public policy."
The petition therefore
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J should be denied.
DISCUSSION A.
Summary of ALAB-918 ALAB-918 affirmed LBP-89-04 which denied interveners' motion to admit.
a contention alleging there were five " fundamental deficiencies" in the-emergency planning exercise which precluded the Board from finding there is_ reasonable assurance that adequate protective measures can and will be taken by Applicants in the event of a radiological emergency. at the Seabrook Station.
Motion To Admit Exercise Contention Or, In The Alternative, To Recpen The Record" (" September 16 Motion").
Interveners further argued-that should the Board determine that the record had been i
closed in the on-site portio., of this proceeding, the record should be reopened for the purpose of admitting their contention, September 16 Motion at 9-11.
j The. Staff and Applicants opposed interveners' motion on the ground that it was not timely filed and did not satisfy the requirements governing the admission of late-filed contentions. See NRC Staff Response l
d To Joint Interveners' Motion To Admit Exercise Contention Or, In The Alternative, To Reopen The Record (October 3,
1986).
Applicants' opposition also was based on this point and the ground that interveners' f
! motion to reopen the record did not satisfy the requirements for reopening a closed record set forth in 10 C.F.R. 5 2.734.
See Applicants' Response i
To Joint Interveners' Motion To Admit Exercise Contenti'on Or, In The l
Alternative, To Reopen The Record (September 28,1988).
In LDP-89-04, 29 NRC 62, 86, the Licensing Board issued an order denying interveners' motion in all respects, principally on the ground that upon interveners' had failed to demonstrate that a balancing of the five lateness factors listed in 10 C.F.R. 6 2.714(a)(1) weighed in favor of admitting the late-filed contention.
29 NRC at 67-71.
In this connection, the Licensing Board resolved the first lateness factor, i.e.
good cause, against interveners because it found that they were in possession of sufficient information to formulate a valid contention on July 15, 1988 but inexcusably delayed filing that contention for more than i
six weeks until September 16, 1988.
29 NRC at 69-70.
I With respect to the third lateness factor, the extent to which a petitioner's participation reasonably may be expected to assist in i
developing a sound record, the Board weighed this factor against interrenors because "[g] generalities, rather than precise issues, were I
presented; and stated that it would "not do Interveners' homework for them by reading the affidavit and then summarizing the proposed testimony." 29 NRC at 70.
The Board stated further that "[a?bsent such a summary, we don't know with any degree of certainty that which will be the substance Id.
d and extent of the proposed testimony."
The fifth factor -- the extent to which a petitioner's participation will expand the issues or delay the completion of the proceeding -- also I
was weighed against interveners.
29 NRC at 70-71.
In this regard the i
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. Board observed thtt because no other matter relating to low power operation' was pending, "[o]bviously the admission of this late-filed contention and subsequent discovery would delay our proceeding." Jd.
d In ALAB-918, the Appeal Board upheld these factual findings and legal conclusions. See ALAB-918, slip op, at 109-12 (finding as a matter of law and fact that interveners' petition was contiitely), at 13-22 (finding as a
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matter of fact that the five lateness factors weighed against admission of contention).
The Appeal Board further found that interveners' exercise contention did not involve a " fundamental flaw" in Applicants' emergency plan (an argument raised below by the Staff but not addressed by the Licensing Board).
M., slip op. 23-25.
This deficiency in interveners' contention provided an independent basis for rejecting the contention.
M.at22-23.
B.
The Matters Raised In The Petition Were Raised Below In their petition, interveners assert that the Appeal Board erred in rejecting their claims that:
(1) the contention was timely and thus not subject to' the rules governing late-filed contentions; (2) the Licensing l
Board subjected the *r exercise contention to a balancing of the five lateness factors listed in 10 C.F.R. 5 2.714(a)(1), thus depriving them of their hearing rights under section 189a of the Atomic Energy Act. Both of these claims were raised below.
See LBP-89-04 at 3-7 (February 13,1989);
September 16 Motion, supra, at 4-11; see also ALAB-918, slip op. at 12-13,
- n. 21.
Interveners also assert the Appeal Board erred in concluding that their exercise contention did not meet the " fundamental flaw" ~1uirement applicable to late-filed exercise contentions.
Petition at 8-9.
Since the Licensing Board did not rely upon this reason as a basis for c __ _ -_ _____-
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dismissing the contention, interveners cannot be faelthd for not' raising this issue before the Appeal Board.
C.
The Appeal Board Correctly Decided The Issues Raised In The Petition Neither the Appeal Board nor the Licensing Board erred in determining that intervenor's contention was untimely.. The Commission's regulations provide that any contention filed 'later than fifteen (15) days prior to sthe holding of the-special prehearing conference... or where no special prehearing co'nference is held, fifteen (15) days prior to the holding of the first prehearing conference' is nontimely and can be admitted only upon a balancing of the five lateness factors." 10 C.F.R. l 2.714(b); see ALAB-918, slip'op, et 11.
Interveners' contention was not-filed within' the time period cited above.
Interveners assert that these time constraints have been modified by
" prior practice" of various. licensing boards. in this proceeding.
Interveners are not correct that the requirements of the regulations have been altered by past practice.
On the contrary, previous rulings of
' licensing boards setting different filing schedules for the submission of contentions were expressly permitted, although not required, under the Rules of Practice. Section 2.711(a) provides:
Except as provided by law, whenever an act is required or allowed to be done at or within a specified time, the time fixed or the period of time prescribed may be'exteraded or shortened by the Commission or the presiding officer, or by stipulation approved by the Commission or the presiding officer.
10 C.F.R. 9'2.711(a).
The off-site Licensing Board exercised this authority and extended the time for interveners to file timely exercise 1
contentions until September 21, 1989.
The contention involved here, however, was filed instead with the on-site Licensing Board which had noj l
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' authorized (nor had it' been askej to do so by interveners) any extension I
of the time per.iod for the filing of exercise contentions.
In the absence of such action, the timeliness of interveners' contention is governed by the standards set forth in 10 C.F.R. $ 2.714(b).
As the Appeal Board and Licensing Board found, and as interveners concede, when judged in light of those standards, the exercise contention must be considered nontimely. M Interveners next argue that subjecting their exercise contention to a balancing of the five lateness factors deprives them of their hearing rights under the Atomic Energy Act.
The Appeal Board properly rejected l
this argument.
ALAB-918, slip c,0.
at 12-13 n.21.
The Commission's decision in Duke Power Company (Catawba Nuclear Station, Units 1 and 2),.
CLI-83-19, 17 NRC 1041 (1983), leaves no room for doubt that the provisions of 10 C.F.R. 6 2.714(a)(1) are applicable to all late-filed contentions.
See 20 NRC at 1046-47.
These provisions do not prevent the raising of contentions, as interveners' claim, but only set a higher threshold for there admission when they are raised late in proceeding.
In Catawba, the Commission addressed this issue and held that an intervenor's statutory hearing rights are not offended by subjecting late-filed contentions to a balancing of the five lateness factors. g.
Decisions 4/
To the extent interveners claim that they aeeded the exercise
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scenario docu mentation to frame their coritentions,
they are im properly seeking to raise a question of fact that both the Licensing )and Appeal Board resolved against '. hem.See 10 C.F.R. 5 2.786(b (4)(ii).
- Further, interveners have yet to explain satisfactorily precisely what they needed from the exercise scenario documentation to frame the submitted contention.
See Transcript of Oral Argument ( April 21,1989).
_. of the-Commission are binding on the Appeal Board E. Therefore, the fact that the Appeal Board applied correctly the holding of the Commission's
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decision in Catawba cannot serve as a basis for reversing ALAB-918, 6/
i Interveners' final argument (Petition at 8-9) is that the Appeal Board's interpretation of." fundamental flaw" is unduly restrictive because it requires an intervenor to contend, among other things, that the exercise revealed a defiency "which can be remedied only through a significant revision of the plan." Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 505 (1988).
There is not merit to this argument.
The Commission had set the same standard in determining that exercise contentions are litigable only to the extent they implicate a fundamental, not simply a minor or ad hoc, flaw in an applicant's emergency ' plan.
id. CLI-C6-11, 23 NRC 577, 581 (1985).
The Appeal Board's interpretation is consistent with the Commission's objective. U 5/
E.
Public Service Company of New Hampshire (Seabrook Station s,
nits 1 and 2), A L A B-892, 27 N R C 485, 493 -(1988).
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The Court of Appeals for the D.C. Circuit has explicitly recognized that higher standards might be opplied to contentions submitted late l
in a proceeding, in contrast to those submitted at the beginning of a proceeding.
U C S v. N R C, 737 F.2d 1437,1447-48 ( D. C. Cir.1984).
l Interveners' reliance on San Luis Obispo Mothers for Peace v. N R C, 751 F.2d 1287, 1316-17 ( D. C. Cir.1984) is misplaced because that case deals with hearing rights regarding license amendments, but does not deal with the application of 10 C.F.R. 6 2.714(a) to late-filed contentions.
-7/
Further, this interpretation is consistent with U CS v. N R C, a case often relied upon by the interveners.
See 73T F.2d at 1447-48
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(under the fundamental flaw standard, the Commission can determine that " minor or ad hoc" problems are not relevant to the licensing (FOOTNOTE CONTINUED ON NEXT PAGE)
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D.
Commission Review Is.Not Warranted As 10 C.F.R. 6 2.786(b)(4) makes clear, "the grant or denial of a petition for review is within the discretion" of the Commission and will not be granted in the absence of a showing that it involves "an important matter that could significantly affect the environment, public health and safety..., involves an.important procedural issue, or otherwise raises important questions of public[.]" 10C.F.R.62.786(b)(4)(i).
Further, a petition for review of factual matters will not be granted unless the-Appeal Board has resolved a factual issue in a clearly erroneous manner contrary to the resolution of that issue by the Licensing Board.
10 C.F.R. 6 2.786(b)(4)(11).
Interveners state, but do not explain, that their petition involves an important matter which could significantly affect the public health and safety and raises important procedural issues warranting Commission review.
See Petition at 9.
This omission is reason in itself sufficient to deny the petition.
More : important, however, interveners simply are wong in asserting that Comission reivew of their petition is warranted.
I As explained above, the Appeal Board committed no procedural error in affirming the Licensing Board's decision.
The Appeal Board's ruling on the timeliness of interveners' contention is consistent with, and mandated by, the Commission's decision in Catawba; its ruling that the contention did not satisfy the fundamental flaw requirement is firmly rooted in the
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decision and "s u m marily dismiss any claim that does not raise genuine issues about the fu n damental nature of the emergency prepardeness plan").
! Commission's decision in Shoreham, CLI-86-l'1, 23 NRC 577, 581.
- Finally, as 'the Commission itself has previously stated, the exclusien of interveners' contention does not appear to raise any significant health or safety question.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-03, 29 NRC
, slip op. at 16 and n.15 (May 18, 1989). Accordingly, the petition should be denied.
CONCLUSION For the reasons stated herein, the Petition for Review of ALAB-918 filed jointly. by the Massachusetts Attorney General, the Seacoast Anti-Pollution League, and the New England Coalition On Nuclear Power i
should be denied.
Respectfully submitted.
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Gr gor an c.r Counse for i RC Staff a
Dated at Rockville, Maryland this 24th day of July 1989 9
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LC( F EIP UNI 1ED STATES OF AMERICA N
NUCLEAR REGULATORY COMMISSION 3 JUL 24 P4 :26 BEFORE THE COMMISSION In the Matter of
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Docket Nos. 501443 OL-01 PUBLIC SERVICE COMPANY OF
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50-444 OL-01 NEW HAMPSHIRE, et al.
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On-site Emergency Planning
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and Safety Issues (Seabrook Staticn, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVEN0RS' PETITION FOR REVIEW 0F ALAB-918" 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 express mail this 24th day of 1
July 1989:
I 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 Commission Washington, DC 20555 Alan S. Rosentnal, Chairman
- Administrative Judge Dr. Jerry Harbour
- j Atomic Safety and Licensing Appeal Administrative Judge 1
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 Boston, MA 02110 3
Board k
U.S. Nuclear Regulatory Commission 1
Washington, DC 20555 l
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= _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
i Philip Ahrens, Esq.
Judith H. Mizner, Esq, Assistant Attorney General 79 State Street Office of the %ttorney General Newburyport, MA 01950
(
State House S'.ation
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Augusta, ME 04333 Robert Carrigg, Chairman l
Board of Selectmen Stepnen A. Jonas, Esq.**
Town 0ffice Assistant Attorney General Atlantic Avenue Office of the Attorney General North Hampton, NH 03862 One Ashburton Place, 19th Floor Boston, MA 02108 William S. Lord i
Board of Selectmen Geoffrey Huntington, Esq.
Town Hall - Friend Street Assistant Attorney General Amesbury, MA 01913 Office of tne 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 i
u_ ___ _
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1 Atomic' Safety and Licensing
,j Charles P. Graham, Esq.
McKay, Murphy & Graham Appeal Panel (5)*
i 100 Main Street'.
U.S. Nuclear Regulatory Commission f
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 Commission Kensington, NH 03827 Washington, DC 20555 3
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 Ccinsel-77 Franklin Street Federal Emergency Management Agency Boston, MA 02110 500 C Street, S.W.
Washington, DC 20472 l
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Grego #y Ayin Berry r
Cou(sol ft NRC Staff
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