ML19332D721

Intervenors Request for Hearing Re Determination That Seabrook full-power License May Be Authorized Based on 10CFR50.47(c)(1).* Demands Hearing Be Held on All Findings Re State of Nh Emergency Plan.W/Certificate of Svc

ML19332D721
Person / Time
Site:	Seabrook
Issue date:	11/15/1989
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	Atomic Safety and Licensing Board Panel
References
CON-#489-9451 ALAB-924, OL, NUDOCS 8912050157
Download: ML19332D721 (8)

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15 UNITED STATES OF AMERICAgo pny gf E S ;17 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD w,

Before the Administrative Judges:

'Ivan W. Smith, Chairman Dr. Richard F. Cole Kenneth A. McCollom

)

In the Matter of-

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Docket Nos.'50-443-OL

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50-444-OL PUBLIC SERVICE COMPANY

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OF NEW HAMPSHIRE, ET AL.

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(Seabrook Station, Units 1 and 2)

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November 15, 1989

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INTERVENORS' REQUEST FOR HEARING REGARDING ANY DETERMINATION THAT A SEABROOK FULL POWER LICENSE MAY BE AUTHORIZED BASED ON 50. 47 (c) (11 The Massachusetts Attorney General, the New England Coalition on Nuclear Pollution and the Seacoast Anti-Pollution League (the "Intervenors") pursuant to 42 U.S.C.-52239 hereby request a hearing with regard to any finding that a Seabrook full power license may issue at present pursuant to 10 C.F.R. 50.47 (c) (1).

Further, Intervenors request that such a hearing (F

be held orior to any such finding or determination being made.

In support of this request, Intervenors state:

1.

On November 7, 1989, the Appeal Board in ALAB-524 reversed and remanded this Board's decision on the adequacy of 8912050157 891115 h

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the NHRERP under NRC regulations.- Notwithstanding this reversal,.this Board issued a decision (dated November 9 but' docketed and served on November 13) authorizing a full-power license for Seabrook.

LBP-89-32 at 1113.8-13.10 (slip opinion at 569-570).

2.

On November 13, Intervenors moved the Appeal Board to vacate and revoke.the license authorization on the grounds that:

i this Board's judgment that the NHRERP provided a.

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" reasonable assurance that adequate protective measures can and will be taken" had been reversed and remanded; b.

this Board's judgment that the NHRERP was in compliance with the standards set forth in 50.47(b) ~ had been reversed and remanded; c.

this Board is legally disabled and without jurisdiction upon remand to simply reutter its judgment with f..

regard to the NHRERP; L

d.

under NRC law, major remand issues involving

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judgment and discretion can only be resolved by means of a hearing held prior to license authorization; the remanded issues on the NHRERP require such a e.

hearing under NRC law and in light of the directives of the Appeal Board in ALAB-924 which this Board must obey;1/

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Indeed, one of the remanded issues involved a reversal of an earlier summary disposition decision by this Board on the

. grounds that a hearing was necessacy on the issues presented.

A necessary inference of such a reversal (at least in a rational world) is that upon remand the hearing that was denied be held.

Under the Atomic Energy Act, such a hearing must be held orlor to licensing on all issues material to licensing.

The remanded issue is obviously " material" to licensing since it challenges the compliance of the NHRERP with the 50.47(b) standards.

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the remanded issues on the NHRERP require that concrete steps be taken by.the State of New Hampshire before the.NHRERP'can be approved.A[.Indeed,'the Appeal Board stated.as clearly as it can be stated:

. While not all implementing details must be in place in order for a plan to.be approved.

in this instance the absence of any concerted attempt to incorporate implementing details for protective action options d-arrived at as a result of the planning process is a deficiency that'must be remedied.

ALAB-924, slip opinion at 68 n.194.

Between November 7 and November 13-(or 9) these steps have not been taken and this Board made'no inquiry in that regard although it nonetheless reuttered its judgment approving the NHRERP as an emergency plan; g.

this Board violated 10 C.F.R. 2.760 (c) (1) (and-the Administrative Procedure Act] when it-acted on November 13 (or 9) without a statement of explanation; and, therefore L

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the Board's November 13 authorization of a L

license should be. revoked and vacated.

3.

In response to this November 13 Intervenor motion, the Appeal Board on November 14 issued an. Order which stated in part:

In this light, our consideration of Intervenors' motion can and should await the Licensing Board's promised explanation of the reasons why licensing I

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As noted, whether these concrete steps are adequate under the regulations requires judgment and discretion which triggers Intervanors' hearing rights under the Atomic Energy Act and NRC law. l l

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y authorization is appropriate, which undoubtedly will' include some explanation of the relevance of 10 C.F.R.

E 50. 47 (c) (1).2/

Order at-2.

4.

While Intervenors too-await-this Board's t

" explanation", they request a hearing to the extent that this

' Board would;now attempt, Dost facto, to " explain" its November 13 authorization of a Seabrook license based on any 4

interpretation of 10 CFR 50.47 (c) (1).

Particularly, were this

- Board to attempt to make a " finding" that deficiencies in the NHRERP are not 'significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly or that there are other compelling reasons to permit plant operation, Intervenors demand that a hearing be held in this~ regard.

Not only have Applicants' made no

" demonstration" as required by (c) (1) but Intervenors:

1) have 2/

The Appeal Board noted that this Board's time estimate for issuance of its " explanation" (at least as of November 14) was 2 weeks.

It no doubt may be possible for this Board to issue such an " explanation" in a shorter time because Intervenors today have filed with the Appeal Board a motion seeking to have that Board take jurisdiction over and decide the admissibility of all other outstanding but not yet decided contentions.

This motion is based on the fact that this Board's jurisdiction over the Seabrook full power license is limited at present to the 4 remanded issues on the NHRERP and the statement of explanations

. permitted by the Appeal Board's November 14 Order.

Having issued its initial decision and authorized a license, this Board's jurisdiction is circumscribed to remanded issues.

Intervenors' EBS contention filed on October 30 and again on November 9, 1989 which seeks to reopen the utility plan record can no longer be decided by this Board.

Egg 10 C.F.R. 2.721(d) and 2.718 (j).

(Intervenors also seek to have the Appeal Board take jurisdiction over their scope challenges to the September 27 onsite exercise.

Intervenors do not believe that those exercise contentions are subject to the motion to reopen standard, but believe that this Board has no recidual jurisdiction left to decide these issues either.) ~

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i never been put on notice that these-legal standards are-

. relevant and' applicable, 2) have never been given an opportunity to'present evidence with regard to these findings;-

3) have never been given an opportunity to confront evidence or 1

cross-examine witnesses with regard to these findings; and 4) generally, have never been provided even an inkling that the approval of the NHRERP would be predicated on-its failure to meet the~ planning standards of 50.47(b) as required in (c) (1).

To the extent, this Board is inclined to explain'the relevance of 50.47 (c) (1) to its November 13 license-authorization by " explaining" that its authorization was pursuant to that reaulation (which it, of course, failed to mention in its November 13 decision), Intervenors demand a hearing be held.on all findings necessary to such application of 50.47 (c) (1) to the NHRERP.

Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL ll (C W.

o,%n Trafi'contd A sistant Attorney General hief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 DATED:

November 15, 1989.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges:

Ivan W. Smith, Chairman i

Dr. Richard F. Cole Kenneth A. McCollom 1

)

In the Matter of

)

Docket Nos. 50-443-OL

)

50-444-OL PUBLIC SERVICE COMPANY

)

OF NEW HAMPDIIRE, ET AL.

)

)

(Seabrook Station, Units 1 and 2)

)

November 15, 1989

)

l CERTIFICATE OF SERVICE l

I, John Traficonte, hereby certify that on November 15, 1989, I made service of the within INTERVENORS' REQUEST FOR HEARING REGARDING ANY DETERMINATION THAT A SEABROOK FULL POWER LICENSE MAY BE AUTHORIZEC.

BASED ON 50.47(c)(1) by telefax as indicated with (*) and by first L

class mail to:

• Ivan W. Smith, Chairman

• Kenneth A. McCollom Atomic Safety & Licensing Board Atomic Safety & Licensing U.S. Nuclear. Regulatory U.S. Nuclear Regulatory Commission Commission East West To'fers Building East West Towers Building 4350 East ' Jest Highway 4350 East West Highway.

Bethesda, MD 20814 Bethesda. MD 20814

• Dr. Richard F. Cole Paul McEachern, Esq.

Atomic Safety & Licensing Board Snaines &

lachern U.S. Nuclear Regulatory Commission 25 Maplewood Avenue East West Towers Building P. O.

Box 360 4350 East West Highway Portsmouth, NH 03801 Bethesda, MD 20814 Kenneth A. McCollum

• Docketing and Service 1107 W.

Knapp St.

U.S. Nuclear Regulatory Stillwater, OK 74075 Commission Washington, DC 20555 i

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• Robert R. Pierce, Esq.

• Thomas G. Dignan, Jr., Esq.

Atomic Safety & Licensing Board Katherine Selleck, Esq.

U.S. Nuclear Regulatory Commission Repes & Gray East West Towers Building One International Place i

4350 East West Highway Boston, MA 02110 Bethesda, MD 20814 H. Joseph Flynn, Esq.

• Mitzi A. Young, Esq.

Assistant General Counsel Edwin J. Reis, Esq.

Office of General Counsel U.S. Nuclear Regulatory Federal Emergency Management Commission Agency Office of the General Counsel l

500 C Street, S.W.

15th Floor Washington, DC 20472 11555 Rockville Pike Rockville, MD 20852 Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Atcmic Safety & Licensing Board Jane Doughty U.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League Washington, DC 20555 5 Market Street Portsmouth, NH 03801 Charles P. Graham, Esq.

Barbara St. Andre, Esq.

Murphy & Graham Kopelman & Paige, P.C.

33 Low Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq.

R. Scott Hill-Whilton, Esq.

79 State Street Lagoulis, Hill-Whilton 2nd Floor

& Rotondi Newburyport, MA 01950 79 State Street Newburyport, MA 01950 Dianne curran, Esq.

Ashod N. Amirian, Esq.

Harmon, Curran, &.Towsley 145 South Main Street Suite 430 P.O. Box 38 2001 S Street, N.W.

Bradford, MA 01835 Washington, DC 20008 L

Senator Gordon J. Humphrey Senator Gordon J. Humphrey i

U.S. Senate One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack)

(Attn: Herb Boynton) _

t John P. Arnold, Attorney General Phillip Ahrens, Esq.

Office of the Attorney General Assistant Attorney General i

25 Capitol Street Department of the Attorney i

Concord, NH 03301 General i

Augusta, ME 04333 t

William S.

Lord Board of Selectmen Town Hall - Friend Street Amesbury, MA 01913 COMMONWEALTH OF MASSACHUSETTS l

JAMES M. SHANNON ATTORNEY GENERAL Idnle-

/A4sistantAttorneyGeneral onn Traficodte

Chief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 01108-1698 (617) 727-2200 DATED:

November 15, 1989 I

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