ML20247F764

Applicant Response to Intervenors Motion for Reconsideration of CLI-89-08 & Renewed Motion for Stay of Issuance of Low Power License in Light of Present Litigation Re Issuance of License in Full Power Proceeding.W/Certificate of Svc

ML20247F764
Person / Time
Site:	Seabrook
Issue date:	05/23/1989
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
References
CON-#289-8651 CLI-89-08, CLI-89-8, OL-1, NUDOCS 8905300170
Download: ML20247F764 (12)

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11AY 23 89 07228 ROPES & GRAY P.2

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May 23, 1989

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UNITED STATES OF ANEnICA j

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NUCLEAR REGULATORY COMMISSION i

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In the Matter cf-

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l PUBLIC SERVICE COMPANY

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Docket Nos. 50-443-OL-1 1

OF NEN HAMPSHIRE, 3.t d.

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50-444-OL-1

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(Seabrook Station, Unite 1

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(Onsite Emergency and 2)

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Planning and Safety

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Issues)

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APPLICANTS' RESPONSE TO INTERVENERS' MOTION FOR RECONSIDERATION OF CLI-r9-08 AND RENEWED NOTION FOR A STAY OF THE' ISSUANCE OF A IDW POWER LICENSE IN LIGHT OF 'THE PRESENT AND ONGOING LITIGATION O' AN ISSUE NATERIAL TO THE ISSUANCE OF A IDW POWER LICENSE IN THE FULL POWER PROCEEDING IMMtODUCTION

~Under date of May 22, 1989, the Attcrney General of The Commonwealth of Massachusetts (MAG), on behalf of himself and three other intervanors in the above enti$ led proceeding, filed a document antitled:

"Intervanors' Motion for Reconsideration of CLI-89-08 and Renewed Motion for a Stay of the Issuance of a Low Power License in Light of the.Present and ongoing Litigation of an Issue Material

-o the Issuance of a Low Power License in the Full Power Proceeding" (hereafter "MotionH).

The thrust of the Motion is to have,this2 Commission reconsider-itssdecision-in Enhl1G * '~~

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servien connany of NRw_HamDSh1Zs (Seabrook Station, Units 1

.and.2), CLI-89-08, 29 NRC (May 18, 1989), (hereafter referred to as CLI-89-08 and cited to the slip opinion) and to reverse that decision in light of the pendency before the so-called "off-site" licensing board in this docket of an issue allegedly raised by the admission into litigation by that board of basis D to contention MAG-EX-19 (hereafter referred to as " MAG-19D").

Motion at 3.1 As we understand the theory of the Motion, it is that: (1) MAG-19D raises an issue as to the validity of the atmospheric dispersion and dose assessment model (known as METPAC) which the applicants

' utilize to make offsite dose projections in an accident situation in connection with recommending protective action responses (PARS), (2) 10 CFR 5 50.47(d), as most recently amended, 52' Fed. Reg. 36955 (Sept. 23, 1988) states that in issuing a low power license under that section, the:

"(r)eview of applicant's emergency plans will include the following standards with offsite aspects:

,s (5) Adequate nothods, systems, and equipment for assessing and monitoring actual or potential offsite consequences 1

It is true that Basis D is referred to as a basis for the Motion "intar Alla", but a review of the other admitted bases (A & B), reveals that they raise issues as to the state of New Hampshire's offsite response organization.

Basis C although included in Exhibit 1 to the motion, was, never admitted, and, in any event, dealt with activities of the State of Maine.

Also, thers is a typographical error in the Exhibit.1 - the

,;q' reference in-Basis A'to MAG-EX-11 should be to MAG-EX-11 s m o m.ss \\

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of a radiological emergency condition are

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in use onsite,"

and (3), because the METPAC model is a method, system or equipment for assessing offsite doses, MAG-19D must be resolved before any low power issue can be issued.

In l

'4 addition, it is stated that this theory did not occur to the

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interveners until'such time as they. read CLI-89-08: and. its

-reference to the possibility that, in the event another " low power"' issue was remanded by the Appeal Board, it could be tried to'the offsite Licensing Board.

CLI-89-08 at 11.

supposedly-this reference triggered a review of the contentions admitted before the Licensing Board and this, in

. turn, gave rise to the Motion.

As seen below, the Motion is without merit.

ARGUMENT I.

~ ONE CRITICAL BASIS FOR '3tE MOTION NO IANGER EXISTS.

Upon receipt of the Motion, the Applicants' brought the Motionanditsgravamen, MAG-19Dtothe.aNtontionofthe

' Licensing Board.

We pointed out to the Licensing Board that the gravamen of the Motion was that the Licensing Board had intended to, and did, admit an issue int:3 its proceeding which was a. prerequisite to issuance of a low power license.

After hearing the parties at some length, II. 22178-22225,2 l

2-We understand this transcript has been expedited and will be in Bathesda as of the morning of May 23, 1989.

Applicants are filing this reply by FAX, s m orra.ss -<

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7 t1AY 23 f 89 07:29 ROPES i GRAY.

P.5 the: Licensing Board ruled that if, as. argued by MAG, the contantion was a contantion affecting low power license issuance, then it was not and never had been within the jurisdiction of the-Licensing Board, and therefore the Licensing Board granted a motion to reconsider made.by the I

. Applicants and " expunged" MAG-19D. 'Tr. 22223-25.

Thus, one of the bases of the Motf.on, the pendency of MAG-19D before

'the Licensing Board, no longer exists.

As of this writing, MAG has appealed that decision of the Licensing Board on an interlocutory basis to the Appeal Board and sought a stay of i

effectiveness of the order. expunging the contention.

However, as.seen below, even assuming the Appeal Board should stay the effectiveness of that decision, this still would not change the fact that the Motion should be denied.

II.

THE NOTION FAILS TO DEMONSTRATE THAT THE INTERVENERS HAVE SATISFIED.THE PROVISIONS OF

.10 CFR 5 2.788, AND THEREFORE, THE MOTION MUST BE DENIED.

The Motion seeks reconsideration of CLI-89-08, a

decision that denied several motions to stay pending appeal a decision authorizing low power operation of Seabrook Station, and also, itself, seeks a stay.

Therefore, in order to prevail, MAG must show that the commission erred when it held l-in CLI-89-08 that the provisions of 10 CFR I 2.788 were not met.

As is well known, there are four factors which are I

and will include in hard copies, filed by Federal Express copies of the transcript.

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MAY 23 'E? 07:30 ROPES & GRAY P.6

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i considered in deciding whether.to' grant an application for a H

stay pending appeals likelihood of success on the marits; irreparable harm to'the movant from denial of the stay; harm to the respondent from the grant of the stay; and the public interest.

10 CFR $ 2.788 (e).

"[I]t is incontrovertible that a

'the most :significant factor in1 deciding whether to grant a stay request is.'whether the party requesting a stay has shown.that it'will be irreparably injured unleas a stcy is granted.'"3-Obviously the Motion adds nothing new to the

" irreparable harm" factor; Thus the same reasons that led the Commission to find no showing of irreparable harm in CLI-89-08 6till exist unaffected by the motion.

Given the importance of the " irreparable harm" showing, this alone is enough to deny the Motion.

Nor does the Motion add anything to what was already said with respect to the " harm to the. respondent" or "public interest"' factors, as to which this Commission also ruled l

against MAG's position in CLI-89-08.

Thus the only facter in 10 CFR $ 2.788 (e) that could be affected by the Motion, is i

the " likelihood of success" factor, and, as seen below, nothing of substance has been added there either.

I To begin with, as noted above, absent an Appeal Board ruling staying the decision of the Licensing Board issued on f

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cLT-as-os at 5, quoting Metropolitan Edinan Co.

(Three Mile-Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984), in turn quoting Mnerheuma Elmetric core..(Exports to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980).

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J' the. record ct the hearing on May 22, 1989,-the contention whichfis the gravamen of the Metion is gone,.and, with it,

.the Motion.

In addition, the Licensing Board was exactly-r-

correct about the fact.that the jurisdictional division between the two Seabrook Licensing Boards, although referred to as "onsite" and "offsite" was, in reality, bstween a board

. z having jurisdiction of the issues which affected low power licensing, and those issues.which remained at the time which affected only full power operation.

The. sirens issue, which

. remains with the other licensing board does so simply because'

at the time jurisdiction of it was assigned it was censidered to be an issue affecting low power licensing.

1 Thus, if the contention is a low power iscu., the "offsite" Soard had no jurisdiction to resolve it and should not have admitted the contention.

Indeed, the Applicants argued

-& gainst the adnission of MAG.19-D on the basis that it should have been. raised as a safety issue back before the original licensing board and that the attempt to raise it as an

" exercise" contention was, in reality the raising of a late k

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fi).ed technical safety contention.

Indeed, properly to raise this' issue now in the manner it is being used before this commission would require a reopening of a closed record as to technical safety issues.

.l Prescindir.g from all of the foregoing, the fact is that L

-MAG in simply wrong in saying that the METPAC issue, as he reised it, claiming that the flaws were not discovered until s m m 6.ss a.

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("c the exercise, can affect low powcr'oparation under the.

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Comsission's rules.

There is no requirement'in the e

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commission's regulations.for the resolution of any-issue f

s arising out of the exercise before' low power. testing is l

authorized.

This.is so because.by-the terms'of the very 1

-regulation that MAG. relies upon,10. CFR 5 : 50.47(d)r the decision on low power is to be made uporithe basis of a

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review of the plan, not-the exercise of the plan.

The only c

prerequisite exercise to any licensing decision is the graded full participation exercise within two years of full power cperation. 'There simply is no otherJexercise of any type which:is a'necessary prorsquisite:te be completed'and litigated before any other type of licensed operation.

Thus,

.sven if theilicensing. Board had erroneously stood by its admission'of'the contention at issue,'this would avail MAG nothing-in his attempt to stop the low power testing of scabrook Station.

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.CQEGLUSIO!;

The Motion-should be denied.

o Respectfully submitted,.

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-s, - m Thefas'G. 911) nan, Jr.

George H. Lewald Kathryn A. Selleck

-Jeffrey P. Trout Jay Bradford Smith Geoffrey C.

Cook William Parker Ropes k Gray One International Place Boston, MA 02110-2624

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( 63.7) 951-7000 Counsel for Applicanus k

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CERTIFICATE OF BERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on May 23, 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 U11ted States mail, first class postage paid, addressed to) the 11dividuals listed below:

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Lando W. Zech, Jr., tdairman 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 Kenneth M. Carr, commissioner James R.

Curtiss, 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 Kenneth C. Rogers, Commissioner William C.

Parler, Esquire U.S. Nuclear Regulatory General counsel 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 Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing

. Appeal Panel Appeal Panel 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 Thomas.S. Moore Marjorie Nordlinger, Esquire Atomic Safety and Licenting Office of the General Counsel Appeal Panel One White Flint North U.S. Nuclear Regulator /

11555 Rockville Pike Commission Rockville, MD 20852 J

East West Towers Building

'4350 East West Highway Bethesda, MD 20814 I

wu e 7w was n9748 0 CNN P.3.

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IAdministrative Judge'Ivan Smith Administrative Judge Kenneth A.

Chairman,. Atomic Safety and McCollom Licensing. Board 1107. West Knapp Street

.U.S.. Nuclear Regulatory Stillwater, OK 74075 Commission East West Towers Building 4350 East-West Highway

Betheada, MD 20814 s

Administrative Judge Richard F.

Administrative. Judge Peter B.

Cole, Atomic safety and Bloch, Chairman, Atomic Licensing Board i

Safety and Licensing Board U.S. Nuclear Regulatory '

U.S. Nuclear Regulatory Commission Commission

'i East West Towers Building East West Towers Building 4350 East West Highway.

4350 East West Highway Bethesda, MD 20814 Bethesda, Md 20814 Dr. Jerry Harbour Atomic Safety and Licensing Administrative Judge Emmoth A.

Luebke Board 4515 Willard Avenue U.S. Nuclear Regulatory Chevy Chase, MD 20815 commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Mr. Richard R. Donovan-Diane curran, Esquire Federal Emergency Management Andrea C. Perster, Esquire Agency

. Federal Regional Center Harmon, Curran & Tousley Suite 430 130.228th street, s.W.

2001 8 street, N.W.

Bothell, WA 98021-9796 Washington, DC 20009 Robert R. - Pierce, Esquire John P Arnold, Esquire Atomic-Bafsty and Licensing Attorney General Board George Dana Bisbee, Esquire U.J.-Nuclear Regulatory Assistant Attorney General Commission East West Towers Building office of the Attorney General 25 Capitol Street 4350 East West Highway Bethesda, MD 20414 Concord, NH 03301-6397 sM7-

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-Adjudicatory File Sherwin E. Turk,. Esquire Atomic Safety and Licensing office of General Counsel Board Panel Docket (2 copies)

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission 1

-Commission

'1 One White Flint North East West Towers Building; 15th Floor 4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852

• Atomic-safety and Licensing Robert A. Backus, Esquire Appeal Board Backus, Meyer & solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J. P. Nadeau

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Assistant Attorney General Selectman's Office Department et the Attorney 10 Central Road j

General Rye, NH 03870 Augusta, ME 04333 I

Paul McEachern, Esquire Shaines & McEachern John Traficonte, Esquire Maplewood Avenue Assistant ~ Attorney General P.O. Box 360 Department of the Attorney General Portsmouth, NH 03801 One Ashburton Place, 19th Floor Boston, MA 02108 Mrs. sandra Gavutis Chairman, Board of Selectmen Mr. Calvin A. Canney City Manager RFD 1 - Box 1154 City Mall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey U.S. Senate.

R. Scott Hill-Whilton, Esquire i

Lagoulis, Hill-Whilton &

Washington, DC 20510 Rotondi (Attn:

Tom Burack) 79 State street Newburyport, MA 01950

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• Senator.Gordon J. Humphrey Leonard Kopelman, Esquire one Eagle Square, Suite 507-Kopelman & Paige, P.C.

Concord, NN 03301 77 Franklin Street (Attn:. Herb Boynton)

Boston, MA 02110 3

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4 uhrg MAY_23L'89 20:43 ROPES S GRAY P.5 o

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' Mrr* Thomas ' F. Powers, III Town Manager Mr. William S. Lord Town of-Exeter Board of Seleotmen Town Hall - Friend Street 10 Front Street.

Aussbury, MA 01913

.Exeter, NH 03833 H. Joseph Flynn' Esquire office-of General counsel-Charles P. Graham, Esquire Federal Emergency Management Murphy and Graham' Agency 33 Low Street 500 C Street, s.W.

Newburyport, MA 01950 Washington, DC 20472 Gary W.-Holmes,. Esquire Holmes & Ells-Richard A. Hampe, Esquire 47 Wannacunnet Road Hampe and McNicholas 35 Pleasant street Hampton,- NH' 03842 Concord,-NH 03301 Judith H. Mizner, Esquire 79 state' Street, 2nd Floor Ashod N. Amirian,-Esquire 145 South Main street ~

Newburyport, MA 01950' P.O. Box 38 Bradford, MA 01835 Thomas G an, Jr.

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