ML20247L581
| ML20247L581 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/11/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#389-9173 OL, NUDOCS 8909250015 | |
| Download: ML20247L581 (14) | |
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DOCKETED USNC i
September 11, 1989 j
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
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m before the y
ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2)
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Planning Issues
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APPLICANTS' RESPONSE TO " INTERVENERS' MOTION FOR LEAVE TO ADD BASES TO IDW POWER TESTING CONTENTION FILED ON JULY 21, 1989 AND TO ADMIT FURTHER CONTENTIONS ARISING FROM IDW POWER TESTING EVENTS OR, IN THE ALTERNATIVE, TO REOPEN THE RECORD AND SECOND REQUEST FOR HEARING" Under date of August 28, 1989, the Attorney General for The Commonwealth of Massachusetts, the Seacoast Anti-Pollution League, and the New England Coalition on Nuclear Pollution (hereinafter collectively "Intervonors") filed a document styled as " Interveners' Motion for Leave to Add Bases to Low Power Testing Contention Filed on July 21, 1989 And to Admit Further Contentions Arising From Low Power Testing Events Or, in the Alternative, to Reopen the Record And Second Request for Hearing" (hereinafter " Motion").
Since the Interveners are not entitled to a hearing as a h
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matter of right, and since their filing fails to satisfy the f
requirements of 10 C.F.R. 55 2.734 and 2.714, the Motion 1
should be denied.
ARGUMENT I.
THE INTERVENERS ARE NOT ENTITLED TO ANY HEARING UNDER 1
SECTION 189(a) OF THE ATOMIC ENERGY ACT AS A MATTER OF RIGHT.
In their answer to Interveners' previous proffer of a l
low power testing contention, Applicants explained in detail 1
why Interveners have no statutory right to a hearing as to low power testing issues.2 Applicants' analysis there applies with equal force to the present Motion, and none of the purportedly new arguments made by Interveners in the Motion merits any extended response.
No number of snide attacks on the NRC Staff can convert a voluntary cessation of testing into a license suspension nor, more importantly, enable the Interveners to evade the unambiguous rulings of this agency and the federal courts that they would have no hearing rights if a license suspension had already occurred.3 Likewise, no amount of fevered rhetoric can turn a test 1
Applicants' Answer to Interveners' Motion to Admit Contention, or, in the Alternative, to Reopen the Record, and Request for Hearing (August 7, 1989) (hereinafter " Answer").
2 Id. at 9-16.
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Id. at 12-13 and cases cited therein; ggg also NRC Staff Response to Interveners' " Motion to Admit Contention, or in the Alternative, to Reopen the Record, and Request for Hearing" at 3-6 (August 18, 1989).
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. sequence which usually occurs after full-power licensing into a material condition precedent to fu31-power licensing.4 II.
THE CASE HAS NOT BEEN MADE FOR REOPENING THE RECORD.
A.
The Motion Is Not Timelv.
The incident which is the subject of Interveners' latest spate of contentions occurred on June 22, 1989, yet the Motion was not filed until more than two months later.
Interveners seek to blame this delay on this Board, the Appeal Board, the requirements of the regulations, the Applicants, the Staff -- in short, on everyone and anyone except themselves.
Interveners contend that "[t]his present filing was triggered by the Staff's AIT and by Staff affidavits accompanying the Staff's August 18 Response all received August 22, 1989.n5 This allegation, however, even if true, misses the mark.
The issue as to timeliness turns not on what " triggered" the filing, but on when Interveners possessed information as to the issues sought to be raised in that filing.
And the simple fact, undisputed by Interveners, is that they possessed ample information on these very issues well before the issuance of the AIT Report.
Looking to the specific bases and contention proffered by Interveners, one sees that:
4 Answer at 15-16, 5
Motion at 14.
O b
(1)
JI-LP-1 Bases F.1, F.2, and F.4, and JI-LP-3 Basis B concern briefing issues which were extensively discussed in Applicants' July 13, 1989 Response to Confirmatory Action Letter 89-11 (hereinafter " CAL Response").6 Egg CAL Response, Attachment "A" to Answer, at pages 2, 3, and 5 of the Response Letter, at page 3 of the Corrective Actions Summary (" Enclosure 1"), and at pages 2 and 3 of the Management Effectiveness Analysis Report (" Enclosure 4").
(2)
JI-LP-1 Basis F.3 concerns training issues drawn from Inspection Report 88-15, which was issued on December 23, 1988, and which are also addressed in the CAL Response at page 3 of the Operational Issues Evaluation (" Enclosure 3").
(3)
JI-LP-1 Basis F.5 and JI-LP-3 Basis C raise Start-up Test Group issues based upon Inspection Reports 88-13 and 88-15, both of which were issued in December 1988, and which are also addressed in the CAL Response at pages 3-5 of.
(4)
JI-LP-1 Basis F.6 and JI-LP-3 Basis A concern the Nuclear Quality Group and are premised entirely on Inspection Reports 89-03 and 89-80, which were issued on May 25, 1989 1
and July 14, 1989, respectively.
Indeed, Basis F.6 expressly admits that the AIT Report contained no new information on this issue: "no mention of any actions of these NQG personnel f
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6 Although Interveners attached only one portion of the l
CAL Response to their original proffer of contentions, they were served with the entire document.
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is made in either the Applicants' CAL Response of July 12 or in the AIT."
(5)
JI-LP-1 Bases G.1 and 2, and JI-LP-2 all concern maintenance procedures and rely upon Inspection Reports 88-11,7 89-03, and 89-80, which were issued on October 14, 1988, May 25, 1989, and July 14, 1989, respectively.
- Moreover, that issue was exhaustively discussed in the CAL Response at pages 29-31 of Enclosure 4.
(6)
JI-LP-1 Basis H alleges inappropriate management actions and is expressly based, in principal part, upon the CAL Response, as well as Inspection Reports 89-03 (May 25, 1989) and 89-05 (June 21, 1989).
In addition to the citations made by Interveners themselves, these issues are covered in pages 4 and 5 of the Response Letter and throughout Enclosure 4.
(7)
Finally, JI-LP-3 Basis D alleges operations errors which, to the extent that the allegations are not redundant with prior bases, are covered by the discussion in the CAL Response at page 2 of the Response Letter and in Enclosure 3.
It thus is clear that Interveners had sufficient facts, well prior to the issuance of the AIT Report, to raise the allegations proffered with the Motion.8 Interveners' 7
Interveners cite to Inspection Report 89-07, which was not issued until August 1989, but only for that report's citation to the earlier discussion in IR 88-11.
8 Cf.
Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-4, 29 NRC 62, 68-70, aff'd, ALAB-918, 29 NRC (1989). - - _ _ _ _ _ _ _ - - _ _
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explicit theory,9 that they can use each new piece of paper generated concerning the June 22 events as a " trigger" for filing another pile of contentions, is fundamentally flawed.
'Prescinding from the foregoing, moreover, the AIT Report was available to Interveners well before August 22.
Although Applicants and the public were denied advance access to the report, it was made available to New Hampshire and Massachusetts officials on August 5 and 6.
The Massachusetts officials, however,' reportedly declined to review the report.
If this be the case -- and Interveners' Motion is resoundingly silent on the subject -- then Interveners have themselves elected to delay their receipt of the report, and they cannot now be heard to argue that their own delay is good cause for lateness.
B.
The Motion Does Not Address a Significant Safety Issue.
Section 2.734 of 10 C.F.R. requires that a party seeking to reopen the record show, by affidavit, that a "significant safety or environment issue" has been raised.
That requirement means exactly what it says:
a "significant",
i.e., important, issue must be raised, not just any " safety" issue.
l Interveners' attempt to evade this explicit requirement by a bit of legerdemain.
Rather than citing to evidence of a "significant safety issue", Interveners instead point to a passage in the AIT report that describes certain issues as 9
Motion at 5. l i
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" safety significant".10 Likewise, in their accompanying affidavit, the Interveners repeatedly allege " safety significant" matters, rather than a "significant safety.
y issue."11 The contrast between a " safety significant" matter and a "significant safety issue" reflects a distinction gith a
' difference.
Logically, a matter is " safety significant" if it merely relates to safety, regardless of its importance.
On the other hand, a "significant safety" matter is one that is important to. safety, as opposed to minor and/or readily correctable.
Interveners, by pinning their entire argument on assertions of " safety significance", have thus failed to 10 Motion at 17.
11 Supplemental Joint Affidavit of Gregory C. Minor and' Steven C. Sholly Regarding the Events of 22 June 1989 During Low Power Testing at Seabrook Unit 1,'at 1111, 14, 17 (August 28, 1989).
Applicants note that Interveners' repeated practice of simply " incorporating by reference" affidavits, reports, and other bulky documents into their brief, as opposed to making-concise arguments and citing to the relevant pages of the attachments, does a real disservice to the Board and the other parties.
In effect, Interveners attempt to make everyone else "do Interveners' homework for them", Public Service Comoany of New Hamnshire (Seabrook Station, Units 1 and 2), LBP-89-4, 29 NRC 62, 70 (1989), by wading through the pile of attachments and guessing what facts and arguments Interveners seek to rely upon.
Moreover, to the extent that Interveners try the same
" incorporation" ploy with their proffered contentions, blandly appending reports and affidavits as " additional bases", they fail to comply with the specificity requirement for contentions.
Wholesale incorporation of one or more massive documents scarcely helps to put the parties on notice as to what particular issues the Interveners seek to litigate. _ _ _ - _ - _ _ _ _ - - _ _ _.
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address, let alone to meet, the higher standard, imposed by
$2.734, of n "significant. safety issue."
C.-
The Motion Fails to Demonstrate That'a Materially Different Result Would Be Or Would Have Been Likgly.
In-their first proffer of'a. low power test contention, Interveners essentially failed even to address the requirement of 10 C.F.R. 5 2.734 (a) (3) that they show, by affidavit, "that a materially different' result would be or would have been likely had the newly proffered evidence been considered initially."12 The present Motion scarcely does-any better; it merely purports to incorporate wholesale the 35 pages of contentions and affidavit (which in turn-purport to incorporate the 30 page AIT Report and its many pages of attachments) as its argument on this criterion.13 As noted above,14 such " argument-by-incorporation" tactics are unacceptable.
In this particular instance, Interveners' reliance on blanket incorporation, rather than analysis, results in their failure to comply with the 10 C.F.R.
$2.734(b) requisite that "Each of the criteria (of $2.734(a)] must be seoarately addressed, with a snecific explanation of why it has been met.
Where [as here] multiple allegations are involved, the movant must identify with particularly each issue it seeks to litigate and specify the factual and/or technical bases which it believes support 12 Egg Answer at 19-21.
13 Motion at 19.
14 Egg suora note 11...
FT the claim that this issue meets the criteria in paragraph (a) of this section."
(Emphasis added.)
Moreover, even if Interveners were somehow relieved of 52.734(b)'s requirement for specificity and particularity, their Motion would still fail because, once again, Interveners have failed to show that -- assuming a significant safety issue were shown to exist, which it was not -- the corrective actions already initiated by the Licensee sufficiently address that issue and thus obviate the need for any hearing.15 D.
The Motion Fails to Satisfy the " Affidavit" Criterion of the Reaulation.
Interveners argue that "the affidavit requirement of 10 C.F.R. 52.734(b) should not be rigidly interpreted as an absolute requirement for a successful motion to reopen.n16 Interveners cite no support for the extraordinary proposition that this Board has the power to dispense with an express requirement of the regulations; nor do they advance any cogent reason why the Board should do so even if it could.
For the same reasons as discussed in reference to Interveners' previous motion offering a low power 15 Sgg Cleveland Electric Illuminating Co. (Perry Nuclear ' MWer PT 9nt, Units 1 and 2), CLI-86-7, 23 NRC 233, 236 (1966); Publi'c Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-4, 29 NRC 62, 73, aff'd, AIAB-918, 29 NRC (1989).
16 Motion at 16. _ _ _ _ _ _
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contention,17 Interveners' affidavit is deficient, and that deficiency constitutes yet another ground for denial of the Motion.
E.
The Motion Does Not Satisfy the "Five Factor" Test for Late-Filed Contentions.
l Interveners now apparently concede (albeit for reasons other than the requirement of 10 C.F.R. 52.734(d)) that they must meet the "five factor" test of 10 C.F.R. 52.714(a).18 The Motion does not meet those test standards.
As discussed in Section II.A supra, there is no good cause for'the lateness of the Motion.
Having failed as to timeliness, Interveners must therefore "make a comoellino showing on the other four factors."19 Interveners do not even come close.
Putting aside the less important second and fourth factors,20 which as usual weigh in Interveners' favor, the Motion clearly fails the fifth factor -- delay and broadening of the issues -- and that fact alone, coupled with untimeliness, would be sufficient to defeat the Motion.21 17 Egg Answer at 21-23.
18 Motion at 12.
19 Public Service ComDany of New Hamoshire (Seabrook I
Station, Units 1 and 2), ALAB-918, 29 NRC slip. op. at 21 (June 20, 1989) (emphasis in original).
20 Id. at 22.
21 Id. at 21.
Interveners basically concede that they cannot carry the fifth factor, Motion at 15, although they do attempt to argue that " future potential litigation" makes it "not clear" that a delay in " full-power licensing" would result. - _ - _ _ _ _ _ _ _ _ _ _
e Moreover, the third factor also weighs against Interveners.
Putting aside the deficiencies in Interveners' affidavit and their affiants' lack of expertise,22 Interveners' tactic of interlarding their Motion and contentions with blanket incorporations of massive documents
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obfuscates the record as to precisely what issues they seek l
to litigate and what testimony they intend to present.
Interveners thus fail to meet their obligation "to set out with 11 much particularity as nossible the orecise issues they plan to cover, the identity of their prospective witnesses, and a summary of their proposed testimony."23 i
CONCLUSION For the reasons noted above, the Motion should be denied.
Respectfully submitted, f-a
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'rYrf Thomas G. Dignan, Jr.
George H. Lewald Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook William L.
Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 22 333 suora Section II.D; ggg also Answer at 24-25, 21-23.
23 ALAB-918, supra note 19, at 19 (emphasis added). - - - - - - _ _ _ -
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'89 SEP 1 A P3 :37 CERTIFICATE OF SERVICE Orry 00CM m.
, :i; < f I, Jeffrey P. Trout, one of the attorneys for the Ap311 cants' herein, hereby certify that on September 11, 1989, I made service
-of the within document by depositing copies thereof with Federal Express, prepaid, for-delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Adjudicatory File Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Administrative Judge Richard F. Cole Robert R. Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory 4350 East West Highway Commission Bethesda, MD 20814 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.
Sherwin E. Turk, Esquire McCollom Office of General Counsel 1107 West Knapp Street U.S. Nuclear Regulatory Stillwater, OK 74075 Commission One White Flint North, 15th F1.
11555 Rockville Pike Rockville, MD 20852 John P. Arnold, Esquire Diane Curran, Esquire Attorney General Andrea C.
Ferster, Esquire George Dana Bisbee, Esquire Harmon, Curran & Tousley Assistant Attorney General Suite 430 Office of the Attorney General 2001 S Street, N.W.
25 Capitol Street Washington, DC 20009 Concord, NH 03301-6397
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P. O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555
Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME- 04333 l
Paul McEachern, Esquire John Traficonte,. Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney.
P.O.
Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fl.
Boston,'MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 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 H. Joseph Flynn, Esquire Judith H. Mizner, Esquire Office of General Counsel 79 State Street, 2nd Floor Federal Emergency Management Newburyport, MA 01950 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 03842 Concord, NH 03301 _ _ _ _ _ _ - - _ _ _ -
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Mr. Richard R.' Donovan
-1 Federal Emergency Management Agency Federal Regional Center:
130-228th Street, S.W.'
Bothell,-Washington. 98021-9796 Ashod N.-Amirian, Esquire 145 South Main Street P.O.-Box 38 Bradford, MA 01835
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Ei.+
Jeffrey P. Trout
(*= Ordinary U.S.
First. Class Mail)
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