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| December 7, 1990 j
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| UNITED STATES OF AMERICA 77 before the da g 4
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| pocKETE0 NUCLEAR REGULATORY COMMISSION N i-DEC 101990 DOCKETmo 6 3
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| seg E E B aAH c&t In the Matter of t.ECYARC C PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE, 91 Al. 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2) Planning and Safety Issues)
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| LICENSEES' PETITION FOR REVIEW OF ALAB-941 The Decision Below As found by the Licensing Board, the graded qualifying exercise for Seabrook Station "was the most extensive exercise evaluation ever conducted by FEMA" and involved the participation of over 2,000 people.' Nevertheless, in a decision denominated as ALAB-941,2 the Atomic Safety and Licensing Appeal Board, has found this exercise to have been deficient in scope to the extent that, according to the Appeal Board, too few school administrators in the New Hampshire portion of the Seabrook EPZ IPublic Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-32, 30 NRC 375, 618 at n.83 (1989).
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| 2Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-941, 32 NRC (Nov. 21, 1990), hereafter cited as ALAB-941 and to the slip opinion.
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| APP 941.58 9012310181 901207 PDR ADOCK 05000443 O PDR sp 5 0 3
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| participated in the exercise.3 This decision was reached despite the fact that there was no contention admitted before the Licensing Board with respect to the participation of school administrators. This difficulty was overcome by the Appeal Board )
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| l by holding that a contention which did not include school ;
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| l administrators, and which had been explicitly so interpreted by 1 the Licensing Board was agh silentio broadened during the hearing.' This holding was, in turn, based on the novel propositions that (a) any footnote in a brief to the Appeal Board, which is not specifically challenged in an opposing brief, may be assumed to be gospel, and (b) that a Licensing Board-decision, if capable of more than one interpretation, should be interpreted as containing a gun sconte broadening of a contention without the Licensing Board ever having complied with the Commission's Comanche Peak ruless for doing so. [
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| Where Matters Raised Below It is the Licensees' position that the holding of the ll Appeal Board was on a matter not properly raised below. In any t.
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| event.the Appeal Board relies upon the brief of an intervenor and its reading of the Licensing Board decision for the result it i
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| 3 ALAB-941 at 26.
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| 'ALAB-941 at 20-21 and n. 43.
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| l 5
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| L Texas Utilities Generatina Co. (Comanche Peak Steam Electric Generating Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981); Texas Utilities Generatino Co. (Comanche peak Steam Electric Generating Station, Units-1 and 2), LBP-81-23, 14 NRC 159 .(1981).
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| t reached. Thus the matters clearly were " raised" for the Appeal Board by the record below as it perceived it.
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| Why The Rulina War 'rroneous In order to reach the result it did, the Appeal Board was faced with the fact that the contention at issue, known as bases "a" and "b" to contention TOH/NECNP EX-1, dealt, by its terms, solely, as the Appeal Board itself states, with the participation val D2D of teachers as opposed to administrators.' Indeed, the Licensing Board had specifically held that the contention at issue was so to be construed in granting a motion by the Licensees to exclude certain testimony which had been prefiled by the Intervonors which would have dealt with the participation of school administrators.I Nevertheless, the Appeal Board stated:
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| " Subsequently, however, the issue was broad-ened to include as well the asserted lack of participation on,the part-of the school administrators."
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| The Appeal Board's entire rationale for this assertion is found in a footnote appended thereto which reads, in its entirety as follows:
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| "In their joint brief, TOH/NECNP explain how the broadening occurred. Town of Hampton and New England Coalition on Nuclear Pollution Brief on Appeal of LBP-89-32 (January 24, 1990)-at 8 n.12 (hereinafter TOH/NECNP Brief). That explanation has not been challenged and it is apparent that, in the 6
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| ALAB-941 at 20.
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| I lg. 22276-77.
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| S ALAB-941 at 21.
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| i November 1989 initial decision, the Licensing Board treated the issue as covering both teachers and adpinistrators. Egg LBP-89-32, '
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| 30 NRC at 638."
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| Thus the Appeal Board gives two bases for its deciding that the issue had been br adened: (1) the failure of the Licensees to ;
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| specifically address a footnote in the Intervenors' brief which gave their argument as to why the issue had been broadened, and (2) an allegod treatment by the Licensing Board of the issue as including school administrators.
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| The first reason, a failure on the part of the appellate brief of the Licensees to specifically address a footnote in an appellants' brief as grounds for adopting that footnote as an accurate statement of fact and law, is, indeed, a novel legal proposition. While it is true that at the trial level the failure to traverse an allegation in a complaint or meet an .
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| evidentiary assertion is an admission or gives rise to a presumption of its accuracy under most systems of civil procedure, no such ganeral rule applies to statements in
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| . appellate briefs. The Appeal Board cites no authority for this proposition and we are aware of none.
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| Prescinding from the foregoing, the Licensees did dispute L
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| the entirety of the argument proffered by TOH/NECNP." In so doi'ng, Licensees expressly based their ergument on the Licensing
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| ~
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| }
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| 'ALAB-9 41 at 21, n.43.
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| " Egg " Applicants' Brief" (March-5, 1990) at 112-114.
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| - - . _ . -. -. _-_ , . . . . = - . .- - - - . - .
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| -l Board's analysis, including citing 112.59 of LBP-89-32 which-clearly focused just on participation by teachers."
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| Likewise,-the Appeal Board was wrong in accepting TOH/NECNP's characterization of the Licensing Board's decision as embracing an expanded version of the contention. Both TOH/NECNP in the_ footnote in their.brief cited by the Appeal Board, and the Appeal Board in ALAB-941 cite to 30 NRC at 638, with TOH/NECNP specifically citing 112.61 of the Licensing Board decision. At that page, however, the Licensing-Board clearly, in 11 12.57 and 12.58, limits the contention to teachers. The reference to "both teachers and administrators" in 112.61, relies on by TOH/NECNP (and presumably the Appeal Board), is merely the Licensing Board quoting an argument f rom Intervenors' proposed findings as to the needed scope of a remedial exercise -- which argument, moreover, the Licensing Board went on to reject.
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| Prescinding from the foregoing, the Appeal Board's reading of the Licensing Board decision requires acceptance of the proposition that the Licensing Board deliberately ignored the ,
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| directives'of the Commission as to the procedures to be followed i by Licensing Boards in raising issues agk sconte.12 Contentions in-an operating license proceeding before this agency do not
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| ; simply expand because certain evidence is introduced, or examination permitted.
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| "(I]t'is well-settled that in a Commission "Id..at 113, citing to 30 NRC at 638.
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| t
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| '2 ssa n. __, suora.
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| .1 -
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| operating license proceeding a party is bound by-the literal terms of its own contention and, unless a licensina board raises'an issue sua soonte, it is authorized to decide only those matters out in controversy by the carties""
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| The Licensing Board here evidenced no intention to take up the issue of school administrators' participation in the exercise as an issue, indeed, rejected such a move by the Intervenors, and, in any event, made no effort to follow the Comanche Peak procedures," a necessary prerequisite before there is any exercise.of the gun sconte authority of a licensing board.
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| Why Commission Review Should be Exercised i The Appeal Board has resolved an issue of fact contrary to the resolution of that'same issue by the Licensing Board."
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| Moreover it has substituted its judgement as to the proper scope of an exercise for that of the Federal Emergency Management Agency (FEMA), the lead' agency with respect to such matters.
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| U garolina Power and Licht Co. (Shearon Harris Nuclear Power Plant) , ALAB-852, . 24 NRC 532, 545 (1986) (footnote omitted, emphasis supplied). .. Accord,-Texas Utilities Generatina Co.
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| (Comanche Peak Steam Electric Station) , ALAB-868, 25-NRC-912, 932 at n.83-(1987);- Carolina Power and Licht Co. (Shearon Harris-Nuclear Power 1 Plant) , ALAB-856, 24 NRC 802, 816 (1986);
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| Philadalchia Electric Co. (Limerick Generating Station, Units 1
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| .and-2), ALAB-845, 24 NRC 220, 242. (1986); Carolina Power and Licht Co. (Shearon' Harris Nuclear-Power Plant), ALAB-843, 24 NRC-200, 208 (1986); Philadalchia Electric Co. (~fuerick Generating Station, Units--I and 2), ALAB-836, 23 NRC 473, DOS (1986);
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| Philadelchia Electric Co. (Limerick Generating Sthtion, Units 1
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| -and 2), ALAB-819,-22 NRC 681, 709 (1985).
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| " Note __, supra.
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| "10 C.F.R. 5 2.786(b) (4) (ii) .
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| .. .y .. - -
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| ')
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| - g-coucLosrow-
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| 't The: commission should grant review of ALAB-941 insofar-as it
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| = reversed _the decision of the Licensing-Board.
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| Respectfully submitted, cf.. Ws Thomas'G. 51gnan,-Jr.
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| George H. Lewald i Kathryn Selleck Shea Jeffrey P. Trout Ropes &' Gray one International Place Boston, MA 02110-2624 (617) 951-7000 counsel for Licensees k
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| 1 9 4.
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| DCCyrttt) 1 CERTIFICATE OF SERVICI -
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| DE"r' f 0 I990
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| % W{Qlggen OWGa
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| , I, Thomas G. Dignan, Jr. , one of the attorney Licensees herein, hereby certify- that on December 7,(f990, 'I f6ade fofd ih\
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| service FederalofExpress, the within document prepaid, for by depositing delivery to (orcopies wherethgehof inditiatie'd, wp%b'E depositing in the United States mail, first class postage paid, addressed to) the individuals listed below:
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| Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission __ Commission One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Forrest J. Remick, Commissioner James R. Curtiss, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatuy Commission Commission One White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Kenneth C. Rogers, Commissioner William C. Parler, Esquire U.S. Nuclear Regulatory General Counsel
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| __ Commission office of the General Counsel One White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD _ 20852 Rockville, MD 20852 G. Paul Bollwerk, III, Chairman Mr. Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel
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| -U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fifth Floor Fifth Floor 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Alan S. Rosenthal, Esquire Mr. Thomas S. Moore Atomic Safety and Licensing. Atomic Safety and Licensing Appeal Panel Appeal Panel
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| -U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fifth Floor Fifth Floor 4350 East-West-Highway 4350 East-West Highway Bethesda, MD- 20814 Bethesda, MD 20814
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| - . . ~ - - . - . . - .
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| .----v--. . _ . - - .
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| 4 1 ,
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| Administrative Judge Ivan Smith Administrative Judge Kenneth A.
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| Chairman, Atomic Safety and- McCollem Licensing Board 1107 West Knapp Street '
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| U;S. Nuclear Regulatory Stillwater, OK 74075 Commission East West Towers Building
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| '4350 East West Highway Bethesda,fMD 20814 Administrative Judge Richard F. H. Joseph Flynn, Esquire Cole. Atomic Safety and office of General Counsel Licensing Board Federal Emergency Management U.S. Nuclear-Regulatory Agency Commission 500 C Street, S.W.
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| East West Towers Building Washington, DC 20472 4350 East West Highway
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| ,Bethesda, MD. 20814 Mr. Richard-R.= Donovan Diane Curran, Esquire
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| . Federal _ Emergency Management Andrea C. Ferster, Esquire Agency Harmon, Curran & Tousley Federal Regional Center Suite 430-
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| ~130.228th Street, S.W. 2001 S Street, N.W.
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| Bothell, WA _98021-9796 - Washington, DC 20009 Robert R.: Pierce,-Esquire John-P. Arnold, Attorney General Atomic Safety and: Licensing George Dana Bisbee, Associate Board. _
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| Attorney General U.S. Nuclear Regulatory Office of the-Attorney General-Commission- 25 Capitol Street Concord, NH 03301-6397
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| ~
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| East West-Towers Building 4350 East West Highway ,
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| 'Bethesda, MD 20814 Adjudicatory File 'Mitzi A. Young, Esquire Atomic Safety and Licensing .
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| Edwin J. Reis, Esquire Board: Panel' Docket-(2 copies) Office of the Genera 1' Counsel U.S. Nuclear-Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers-Building one White Flint North, 15th F1.
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| 4350 East West Highway _ 11555 Rockville Pike.
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| Bethesda, MD ,20814 Rockville, MD 20852 1
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| l 1
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| l 1 i.
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| {
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| * Atomic-Safety and Licensing Robert A. Backus, Esquire !
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| Appeal Panel' Backus, Meyer & Solomon :
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| U.S. Nuolear Regulatory 116 Lowell Street Commission P.O. Box 516 Mail Stop EWW-529 Manchoster, NH 03105 Washington, DC 20555 Philip Ahrens, Esquire Suzanne P. Egan, City solicitor Assistant Attorney General Lagoulis, Hill-Whilton & ,
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| Department of the Attorney Rotondi General 79 State Street
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| -Augusta, ME. 04333 Newburyport, MA 01950 Paul.McEachern, Esquire Stephen A. Jonas, Esquire Shaines & McEachern Leslie Greer, Esquire Maplewood Avenue Matthew Brock, Esquire P.O. Box 360 Massachusetts Attorney General
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| -Portsmouth, NH 03801 One Ashburton Place Boston, MA 02108 >
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| ~
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| * Senator Gordon'J..Humphrey R.-Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
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| Washington, DC '20510 Rotondi (Attn: . Tom Burack) 79 State Street Newburyport, MA. 01950 ;
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| * Senator.Gordon J. Humphrey Barbara.J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.
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| Concord, NH- 03301 101 Arch Street 1 (Attn: Herb Boynton) Boston, MA 02110 Ashed N. Amirian,. Esquire Judith H. Mizner, Esquire
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| -145-South Main Street -79 State Street,.2nd Floor P.O. Box;38 Newburyport, MA 01950 JBradford, MA 01835 Gary W. Holmes, Esquire = Marjorie Nordlinger, Esquire Holmes &LElls Office of the General Counsel.
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| 47 Winnacunnet Road One White Flint North Hampton, NH 03842 11555 Rockville Pike Rockville, MD= 20852 Mr. Jack Dolan-Federal Emergency Management Agency.- Region-I J.W. McCormack Post Office &
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| Courthouse Building, Room 442-Boston, MA 02109 4
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| .V George Iverson, Director N.H. office of Emergency Management State House office Park South 107 Pleasant Street Concord, NH 03301 f.lA- /
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| Thomas G. &fgn'an , J r .
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| -_}}
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