ML20214G696

Applicants Response to Jf Doherty Third Petition for Leave to Intervene.* Petition Should Be Dismissed Due to Failure to Satisfy late-filed Criteria & Not Meeting Criteria of 10CFR2.734.W/Certificate of Svc

ML20214G696
Person / Time
Site:	Seabrook
Issue date:	05/15/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3522 OL, NUDOCS 8705270143
Download: ML20214G696 (11)

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00CKETED US'lRC

$1ggg720 P6 :06 UNITED STATES OF AMERICA CFFICE Cr iisid k n' NUCLEAR REGULATORY COMMISSION

' 00CHE!!!G a F/KJ BRANCH before the 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

't al.

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50-444-OL NEW HAMPSHIRE, e

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-(Seabrook Station, Units 1 and 2)

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(Offsite Emergency Planning

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Issues)

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APPLICANTS' RESPONSE TO JOHN F.

DOHERTY'S THIRD PETITION FOR LEAVE TO INTERVENE Introduction

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Under date of May 11, 1987, John F. Doherty (hereafter "the Petitioner") has filed a " Third Pe ti tion for Leave to l

Intervene."

The thrust of the' petition is that he should be 1.

allowed to intervene in this proceeding in order to raise and l

L presumably litigate the issue of the " character" of Public Service Company of New Hampshire (PSCO), the lead Applicant for the operating license at issue in this proceeding.

The basis for the contention is that PSCO:

l

" established a non-profit organization, called j

' Coalition for Reliable Energy,' for the purpose of influencing public opinion through media messages which contained no information that funding for such messages was more s

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than 90%.provided by Applicant [s]."

Petition at 2.

It is alleged that the Applicants benefited from this

-course of action b'ecause the media did not offer equal time under'the so-called " fairness" doctrine and because:

"the

-messages took a greater appearance of objectivity." Id. at 3.

For-the reasons set forth below, the Applicants say

-that the Petition should be denied.

THERE IS NO. JURISDICTION IN THIS OR ANY OTHER LICENSING BOARD TO ENTERTAIN THE PETITION AT BAR Under the' terms of the caption of the petition, this

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petition has been-filed with the "Offsite" Licensing Board.

(The Onsite Board has a designated docket number ending in "OL-1".)

This Board has jurisdiction only over offsite emergency plar.ning issues.

It is fundamental that each Atomic Safety and Licensing Board has only the jurisdiction delegated to it by the Commission.

E.g.,

Wisconsin Electric Power Co.

(Point Beach Nuclear Power Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1962).

-In addition, the "Onsite" Board is powerless to entertain this petition because it has, having rendered its partial initial decision dealing with the last of the issues before it, relinquished all jurisdiction in this matter at least absent a remand of some kind.

See Caroiina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979); 10 CFR 2.717.

In 2

C short, at this time, there is no Licensing Board which has jurisdiction over this Petition.

THE PETITION FAILS TO SATISFY THE LATE-FILED CRITERIA

"(1) Good cause, if any, for failure to file on time" By its own terms, the Petition demonstrates that the first of the so-called.five factors set out in 10 CFR 2.714 should be weighed against allowing th?.s late-filed intervention. 'The Petitioner states the "[ alt the end of January 1987, the Coalition for Reliable Energy revealed it received $2.8 million from the 12 utilities who own shares of Seabrook station and $20,000 from non-utility sources."

Petition'at 3 (first emphasis added).

At that point the Petitioner knew or should have known that the Coalition's efforts were being underwritten in the main by the owners of Seabrook.

Yet he waited until some two and one half months later to file the instant petition.

The argument that it was impossible to bring the petition until the petitioner allegedly knew a benefit from the alleged bad conduct had been received, Petition at 3-4, is of no merit.

The allegation being made here is tha.t the lead Applicant lacks character on the basis that it allegedly misled the public as to the l

source of funding of a pro-Seabrook organization.

That l

basis for this allegation existed as of the date the first 1

3

e.

-o advertisement went on television and it was known to the

. Petitioner by his own admission in late _ January.

It.is not necessary to allege damage to allege a contention; the only standard is whether the-contention can be alleged with sufficient specificity.

See Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 469 (1982), reversed in part other grounds, CLI-83-19, 17 NRC 1041 (1983).

This contention clearly could have been alleged two and one-half months ago.

The first factor should weigh against allowing the late intervention.

"(ii) The availability of other means whereby the petitioner's interest will be protected" This factor usually weighs in favor of allowing intervention.

Insofar as one is arguing that this is the only forum where this petitioner can challenge the operating license this is true here as well.

It should be noted however that there is litigation in the courts of The_ Commonwealth of Massachusetts on this matter as of this time which this Petitioner could probably intervene in if he desired.

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"(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record" The showing by.the Petitioner on this factor consists of a statement that : "[p]etitioner has had extensive experience in Commission licensing proceedings and is a recent law school graduate."

Petition at 5.

The third factor contemplates that the contribution will be in the form of evidence, not legal skills. Commonweal th Edison Co.

-(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246-47 (1986); Hous ton Ligh ting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 513 N.14 (1982).

"A late petitioner can establish that its participation may reasonably be expected to assist in developing a sound record by '(1) identify [ing) specifically at least one witness it intends to present; and (2) provid[ing] sufficient detail respecting that witness' proposed testimony to permit the Board to reach a reasoned conclusion on the likely worth of that testimony on one or more of [its] contentions.'"

W shington Public Power Supply System a

(WPPSS Nuclear Project No. 3),

ALAB-767, 19 NRC 984, 985 (1984).

The Petitioner herein has not supplied the name or testimony of even a single witness.

The third factor must weigh heavily against allowing this late intervention.

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"(iv) The extent to which the Petitioner's interest will be represented by existing parties" This factor weighs in favor of the Petitioner as is usually the case.

"(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding The Petitioner essentially concedes that this factor weighs against allowing this intervention.

'To begin with it is a new issue, and the Board that would have jurisdiction of

.it has completed its proceeding.

Thus, this.is really~a question of reopening a completed proceeding, see in fra, and it is clear that the fifth factor weighs against allowing the late Petition.

Summary The first, third and fifth factors weigh heavily against the allowance of this petition; the~second and fourth, as usual, favor it.

The balance should be struck in favor of rejecting the Petition.

AS A MOTION TO REOPEN THE PETITION SHOULD ALSO BE REJECTED PURSUANT TO THE PROVISIONS OF 10 CFR 2.734 As noted earlier, the Board to which this motion is addressed is, and has been, without subject matter jurisdiction over this petition by virtue of the fact that its jurisdiction 6

is confined to offsite emergency planning matters.

In the-event the Petition is forwarded to the "Onsite" Board, and assuming'that Board rules it still'has jurisdiction despite-the fact that the Partial Initial Decision'has-been rendered and the subject thereof is now before the Appeal Board in part an'd the' Commission in part, we herein address the criteria for reopening set forth in 10 CFR 2.734.

As already discussed above the motion is not timely given the fact that the essential facts were known or should have been known to the petitioner since January; thus, the criterion set forth in 10 CFR 2.734(a)(1) is not satisfied.

There is no--material safety issue involved here.

The question of an applicant's character requires a Licensing Board to:

" scrutinize [ Applicant's] record of compliance ' tith NRC regulations, its response to noncompliances, its candor in dealing with the Commission, the Board, the staff, and other parties."

Houston Lighting & Power Company (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 371 (1985).

I The question of how an Applicant conducts its public relations

[

campaigns is of no moment to its character in the nuclear L

licensing context.

Thus, even assuming that everything in this petition were true,-there could not be a different result here.

The fact is that the Applicants have not surrendered their right to free speech by going into the nuclear power business 7

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_g-e and this agency has no function in policing the airwaves-of the nation for any reason.

Therefore, the' criteria set out in 10

.CFR.2.734(a)(2) and-(3) are not satisfied.

In addition to the foregoing, there has been no compliance with the affidavit requirement of 10 CFR 2.734(b).

And for'the reasons' set forth at the outset of this response the provisions of 10 CFR 2.734(d) that the five factorn favor late intervention have not been satis ^ied.

CONCLUSION The Petition should be dismissed.

Respectfully submitted, JA/]

. sr a. /,

Th'oma'sG((~

gnan, Jr.

George H.

Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants 8

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4 DOLKETED USHRC.

m CERTIFICATE OF SERVICE I, Thomas _G.

Dignan,'Jr., one of the attorne e

Applicants herein, hereby certify that on May 15, 1987, madeserviceof~thewithindocumentbymailingcgig5yIy.

thereof, postage-prepaid, to:

BRANCH-

-Administrative Judge Helen Hoyt, Stephen E. Merrill, Esquire i-

. Chairperson Attorney General Atomic Safety and Licensing George Dana Bisbee,-Esquire Board Panel.

Assistant Attorney General U;S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street-Washington,--DC 20555 Concord, NH 03301-6397.

Judge Gustave A.'Linenberger, Jr.

Dc. Jerry Harbour Atomic Safety-and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission--

Commission Washington,--DC 20555 Washington, DC 20555

-Robert Carrigg, Chairman Diane Curran, Esquire Board of Selectmen Andrea C.

Ferster, Esquire Town Office Harmon & Weiss Atlantic Avenue Suite 430

{

North.Hampton, NH 03862 2001 S Stre'et, N.W.

Washington, DC 20009 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S.-Nuclear Regulatory Director l

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

_ Atomic Safety-and Licensing Robert A.

Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon l

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 Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road o

l General Rye, NH 03870 Augusta, ME 04333 k

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. - - _ ~,. _. -.. -

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?M io Paul McEachern;? Esquire Carol-S.-Sneider; Esquire

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-Matthew T. Brock,' Esquire

_ Assistant Attorney General'

--ShainesL& McEachern' DepartmentLof-the: Attorney.Generali 25 Maplewood Avenue One~Ashburton-Place, 19th Floor I

P.O.: Box ~360-Boston, MA- 02108-l tPortsmouth,~NH 03801 f

Mrs. Sandra Gavutis Mr.. Calvin A'.

Canney

-Chairman,' Board-of Selectmen.

-City: Manager

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RFD 11-Box-1154 City Hall' Kensington; NH.03827.

126 Daniel' Street Portsmouth, NH 03801~

Senator Gordon J.'Humphrey Mr. Angie Machiros

^

U.S.

Senate-

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Chairman of the

' Washington, DC. 20510 Board of Selectmen

(Attn: -Tom Burack)-

Town of'Newbury Newbury, MA 101950 Senator-Gordon J. Humphrey Mr. Peter S.

Matthews One! Eagle Square, Suite 507 Mayor Concord, 'IGI 03301 City' Hall.

(Attn:

Herb.Boynton)-

Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S.

Lord Town Manager Board of Selectmen Town-of Exeter-Town-Hall - Friend Street 10LFront Street' Amesbury, MA 01913 Exeter, NH '03833-H.

Joseph Flynn, Esquire Brentwood Board of Selectmen

-Office of Gen'eral Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 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 03841 Concord, NH 03301 Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I-Silverglate, Gertner, Baker 442 John W. McCormack Post Fine, Good & Mizner

~ Office and Court House-88 Broad Street Post Office Square Boston, MA '02110 Boston, MA~ 02109 a

Charles P. Graham, Esquire Mr. John F.

Doherty McKay, Murphy and Graham 18 Maugus Avenue 100 Main Street Wellesley Hills, MA 02181 Amesbury, MA 01913

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Thomas G. Kgnan, Jr.