ML20236D461
| ML20236D461 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/15/1989 |
| From: | Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8313 LBP-89-04, LBP-89-4, OL-1, NUDOCS 8903230115 | |
| Download: ML20236D461 (23) | |
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'89 tila 20 P4 :05 UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION r.
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f BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD. !
i In the Matter of Y Docket Nos. 50-443 OL-01 i PUBLIC SERVICE COMPANY OF 50-444 OL-01
' On-site Emergency Planning NEW HAMPSHIRE, e_t t a_1.
.? $ and Safety Issues
. (Seabrook Station, Units 1 and 2)
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l NRC STAFF RESPONSE IN OPPOSITION TO JOINT INTERVENERS' APPEAL OF LBP-89-04 1
- Gregory Alan Berry 2 Counsel for NRC Staff i
March 15, 1989 I 8903230115 890315 PDR ADDCK 05000443 G PDR o
. Y 1
l-I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW HAMPSHIRE, ,e_t al,. On-site Emergency Planning l
., and Safety Issues (Seabrook Station, Units 1 and 2)
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NRC STAFF RESPONSE IN OPPOSITION TO JOINT INTERVENERS' APPEAL OF LBP-89-04 I
Gregory Alan Berry Counsel for NRC Staff March 15, 1989
TABLE OF CONTENTS Pace INTRODUCTION ........................ 1 BACKGROUND . ....................... 3 ARGUMENT .......................... 6 I. The Board Did Not Err In Ruling !
Joint Interveners' Contention Had
To Meet The Requirements Of
, 10C.F.R.62.714(a)and(b) ............... 6
]
II. The Board Correctly Determined That A Balancing Of The Five Lateness Factors Weighed Against The !
Admission Of Joint Interveners' Contention ........................ 8 A. There was not good cause for Joint Interveners' six week delay in filing the contention ........... 8 B. The availability of other means or parties to protect Joint Interveners' interests . . . . . . . . . . . . . 11 ;
C. The extent to which petitioner can contribute to the development of a sound record ................. 11 1
D. The extent to which the contention will broaden the issues or delay completion of the proceeding . . . . . . . . . . . . . . . . . 12 III. Any Error The Board May Have Committed In Subjecting Joint Interveners' Contention To The Standards Governino Motions To
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Reopen Is Harmless And Does Warrant A Reversal Of LBP-89-04 . . . . . . . . . . . . . 14 i
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IV. Joint Interveners' Exercise l Contention Could Not Be Admitted In Any Event Since It Did Not Allege With The Requisite Specificity And Bases A " Fundamental Flaw" In Applicants' Emergency Plan . . . . . . . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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- ii - J TABLE OF AUTHORITIES 4
\ l Pag!! !
JUDICAL DECISIONS Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)~ . . . . . . . . . . . . . . . . 3,4,7,14 ADMINISTRATIVE CASES
. Commission:-
Commonwealth Edison Co. (Braidwood
- Nuclear Power Station, Units 1 and 2),
CLI-86-8, 23 NRC 241 (1986) .................. passim Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983) . . . . ... . . . . . . . . . . . . . . . . 7,8,10 Long Island Lighting Company (Shoreham ,
Nuclear Power Station, Unit 1), I CLI-86-11,23NRC577(1986) . . . . . . . . . . . . . . . . . 15 l
Appeal Board:
Duke Power Co. (Catawba Nuclear '
Station, Units 1 and 2), ALAB-813, 22NRC59(1985) . . . . . . . . . . . . . . . . . . . . . . . 10 Long Isia.d Lighting Company (Shoreham Nuclear Power Station Unit 1),
ALAB-903, 28 NRC 499 (1983) . . . . . . . . . . . . . . . . . 15 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1),
ALAB-815, 22 NRC 198 (1985) ................. 9 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982) . . . . . . . . . . . . . 8,11 South Carolina Electric and Gas Company
. (Virgil C. Summer Nuclear Station, Unit 1),ALAB-642,13NRC881(1981) . . . . . . . . . . . . . 11
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1-Licensing Board: )
i' Memorandum and Order (Directing Additional Briefing) J (October 25, 1988) (unpublished) ............... 4 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
LBP-89-04, 29 NRC (January 30,1989) . . . . . . . . . . . . passim REGULATIONS
..' 10 C.F.R. 6 2.714(a)(1) . . . . . . . . . . . . . . . . . . . . . passim
. 10 C.F.R. I 2.714(b) ...................... 2,6,7,8 10 C. F. R . 5 2. 734 . . . . . . . . . . . . . . . . . . . . . . . 2,4,6,14 I
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UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION j l
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i In the Matter of )
Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEWHAMPSHIRE,e_tal. On-site Emergency Planning
' and Safety Issues
.. (Seabrook Station, Units 1 and 2) )
. NRC STAFF RESPONSE IN OPPOSITION TO JOINT INTERVENERS' APPEAL OF LBP-89-04 INTRODUCTION On February 13, 1989, the Massachusetts Attorney General, the Seacoast Anti-Pollution League, and the New England Coalition On Nuclear Power (collectively, " Joint Interveners") filed a brief in support of their appeal of the "on-site" Licensing Board's decision in LBP-89-04. 1/
In that decision, the Licensing Board denied Joint Interveners' motion to admit a late-filed contention which alleged deficiencies in five "onsite" aspects of an emergency preparedness exercise conducted by Applicants on June 27-29, 1988. See LBP-80 nd, slip op. at 40. 2/
Joint Interveners raise four arguments on appeal. First, they assert ,
that the Licensing Board erred in treating their exercise contention as 1/ Public Service Company of New Hampshire (Seabrook Station, Units 1
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and 2), LBP-89-04, 29 NRC (January 30,1989).
2/ Since this motion represented the only pending matter relevant to low power operations, the Licensing Board also reauthorized the issuance of a low power license for the Seabrook Station. LBP-89-04, slip op.
at 41. Following the Commission's guidance in CLI-88-10, however, the Licensing Board's order provides that no license may issue until the remaining conditions set forth in CLI-88-10 are satisfied. Id.
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1 untimely. Brief Of The Appellants On Appeal Of LBP-89-04 at 3-7 (February 13, 1989) (hereinafter " Appeal"). Second, Joint Interveners i
maintain that even if the Licensing Board correctly treated their contention as untimely, it erred in determining that a balancing of the five factors governing later filed contentions weighed against the admission of ti:e contention. Id. at 7-11. Third, Joint Interveners argue that the Licensing Board erred in subjecting their exercise contention to the standards governing motions to reonen a closed record. M.at11-13.
Their final argument is that even if the standards governing motions to reopen the record were applicable, the Board improperly "reacheo the merits" in concluding that they had not raised a significant safety issue.
M.at13-17.
The appeal should be denied. As explained in this response, the Licensing Board correctly concluded that Joint Interveners' contention --
submitted years after the time for the original submission of contentions l had expired -- was required to meet the standards in to comply with 10 C.F.R. 6 2.714 before it could be admitted. Pursuant to 10 C.F.R. l l
52.714(b), the Licensing Roard was required to evaluate Joint Interveners' contention in light of the five lateness factors listed in l 10 C.F.R. 5 2.714(a)(1). Because the Licensing Board concluded correctly that a balancing of those five factors militated against the admission of Joint Interveners' contention, the motion to admit the exercise contention ]
- properly was denied. In these circumstances, LBP-89-04 should be affirmed l even assuming Joint Interveners are correct in asserting that the Licensing Board erred in applying the reopening standards of 10 C.F.R. 5 2.734 to their contention, since the alleged error clearly is harmless.
Further, the exercise contention filed by Joint Interveners did not allege, with the requisite specificity and bases, a " fundamental flaw" in l Applicants' emergency plan. Thus, the contention could not have been admitted for litigation even had the Licensing Board determined that it satisfied the standards governing later filed contentions and motions to reopen a closed record. For these reasons, the Appeal Board should deny Joint Interveners' appeal.
BACKGROUND On September 16, 1988, Joint Interveners filed a " Motion To Admit Exercise Contention Or, In The Alternative, To Reopen The Record"
(" September 16 Motion") in which they requested the "on-site" Licensing Board to admit a contention which alleged there were five " fundamental deficiencies" in the emergency planning exercise conducted by Applicants on June 27-29, 1988. They maintained that this precluded the Board from finding there is reasonable assurance that adequate protective measures can and will be taken by Applicants in the event of a radiological emergency at the Seabrook Station. ,
See September 16 Motion at 1 and Exhibit 1 at 1. In their motion, Joint Interveners argued alternatively that should the Board determine the record had been closed in the on-site portion of this proceeding, the record should be reopened for the purpose of admitting their contention. September 16 Motion at 1. 3_/
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In their September 16 Motion, Joint Interveners moved the Board to admit the exercise contention. In Joint Interveners' view, the standards governing motions to reopen a closed record did not apply because application of such standards was barred by the the decision in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.
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The Staff and Applicants opposed Joint Interveners' motion. The Staff opposed the admission of Joint Interveners' exercise contention on the ground that it was not filed within the time for originally set for filing contentions and ' did not satisfy the requirements governing ;he
. admission of later filed contentions. See NRC Staff Response To Joint
. Interveners' Motion To Admit exercise Contention Or, In The Alternative, O ,
To Reopen The Record (October 3,1988). Applicants' opposition was based on this point and on the additional ground that Joint Interveners' motion to reopen the record did not satisfy the requirements for reopening a closed record set forth in 10 C.F.R. I 2.734. See Applicants' Response To Joint Interveners' Motion To Admit Exercise Contention Or, In The Alternative To Reopen The Record (September 28,1988).
On October 25, 1988, the Licensing Board issued an order, stating:
We find .that additional briefing and affidavits are necessary with respect to that part of the motion seeking to reopen the record. We will consider these briefs and affidavits to determine whether a significant safety issue has been raised and l whether a materially different result would be or would have been likely had the newly proffered evidence been considered initially.
Memorandum Order (Directing Additional Briefing And Affidavits) at 1 (October 25, 1988) (unpublished). Pursuant to that order, on November 8, 9, and 28, 1988, respectively, Applicants, Joint Interveners, and the Staff filed responses to the Board's order. See Applicants' Response To
. (FOOTNOTE CONTINUED FROM PREVIOUS PAGE 1984). See September 16 Motion at 4-8. In the alternative, however,
. Joint Interveners argued that were the Board to determine that the i reopening standards set forth in 10 C.F.R. 6 2.734 are applicable, the motion nonetheless should be granted since it satisfied them.
Id. at 9-11.
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1 Board Order Of October 25, 1988 Directing Additional Briefing And 4 l
Affidavits (November 8,1988); Memorandum Of Joint Interveners In Response To October 25, 1988 Order Of Licensing Board (November 9, 1988); NRC Staff i Response To Licensing Board Order Of October 25, 1988 (November 28,1988)
- (" November 28 Staff Response"). In its response, the Staff demonstrated
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that Joint Interveners' motion did not raise a significant safety issue.
However, citing UCS v. NRC, supra, 735 F.2d 1437 (D.C. Cir.1984), the Staff reiterated that "because the emergency planning exercise conducted by Applicants in June 1988 is ' material' to the licensing decision," the standards governing motions to reopen a record were not applicable to Joint Interveners' motion. November 28 Staff Response at 2-3.
On January 30, 1989, the Licensing Board issued an order denying Joint Interveners' motion in all respects. LBP-89-04, passim. This denial rested primarily upon Joint Interveners' failure to demonstrate that a balancing of the five factors listed in 10 C.F.R. 62.714(a)(1) weighed in favor of admitting the contention. Id. at 4-11. The Licensing Board first determined that Joint Interveners had failed to satisfy the first lateness factor in 10 C.F.R. 5 2.714(a)(1) as there was not good cause to excuse their late filing. The Board found that on July 15, 1988, Joint Interveners were in possession of sufficient information to formulate a viable contention which could have been submitted by July 29, 1988 but inexcusably delayed filing that contention for more than six
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. weeks until September 16, 1988. Id_. at 8-9.
With respect to the third factor in 10 C.F.R. 9 2.714(a)(1), the j
extent to which a petitioner's participation reasonably may be expected to assist in developing a sound record, the Board weighed this factor against
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Joint Interveners because "[g] generalities, rather than precise issues, were presented" and stated that it would "not do Interveners' homework for i
them by reading the affidavit and then summarizing the proposed l l
testimony." Id. at 11. The Board stated further that "[albsent such a summary, we don't know with any degree of certainty that which will be the substance and extent of the proposed testimony." Id.
The fifth factor -- the extent to which a petitioner's participation will expand the issues or delav the completion of the proceeding -- also was weighed against Joint Interveners. M. In this regard the Board observed that because no other matter relating to low power operation was pending, "[o]bviously the admission of this late-filed contention and subsequent discovery would delay our proceeding." M.
The Board also considered and denied Joint Interveners' alternative motion to reopen the record to admit their exercise contention. M. at 12-40. The motion to reopen was denied because it did not raise a "significant safety issue" as required by 10 C.F.R. 6 2.734(a)(2). I,d d.
ARGUMENT I. The Board Did Not Err In Ruling Joint Interveners' Contention Had To Meet The Requirements Of 10 C.F.R. 6 2.714(a) and (b) _
Joint Interveners argue that their contention was not subject to the provisions of 10 C.F.R. 6 2.714(a)(1) and (b). Appeal at 3. However, they do not cite a single case which supports the position that the contention was timely filed. O As explained below, the Licensing Board 4/ Joint Interveners seem to rely on UCS v. NRC for the proposition that admission of the contention was not subject to 10 C.F.R. 6 2.714.
(F0OTNOTE CONTINUED ON NEXT PAGE)
did not err in finding that the contention had to satisfy the procedural requirements of this regulation.
The Licensing Board correctly applied 10 C.F.R. 5 2.714(a) and (b) and determined that the contention was filed late. LBP-89-04 at 4-6.
Section 2.714(b) of the Comission's Rules of Practice explicitly states
- that any contention filed after the expiration of the time period
. specified in the notice of hearing, or as provided by the Comission or the presiding officer, must meet the " good cause" test that set out in section 2.714(a). In Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 251 (1986) and Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1046 (1983), the Comission held that where issues are sought to be raised after the time for raising issues set out in 10 C.F.R.
6 2.714(a)(1) and (b) has expired, a balancing must be made of the factors there prescribed before any additional contentions may be admitted.
The notice of hearing in this proceeding was issued, and the first prehearing conference was held, several years ago. Joint Interveners do not dispute these facts. See Appeal at 4. Applying the above rules, the Board correctly determined that Joint Interveners' contention, which was (FOOTNOTECONTINUEDFROMPREVIOUSPAGE Appeal at 4-7. However, the decision in UCS v. NRC does not support this argument. In that decision, the court expressly acknowledged the authority of the Comission to subject contentions filed near the completion of a proceeding to more stringent standards than those applied to contentions filed earlier. See 735 F.2d 1437,1447-48.
The only limitation on the Comission's authority in this regard is i that an intervenor's statutory hearing rights cannot be made to hinge upon the agency's unfettered discretion where the issue sought to be raised is " material to the licensing decision." Id,. at 1443-1444.
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l L L filed on September 16, 1988, had to meet the tests set out in 10 C.F.R. 52.714(a)and(b).
II. The Board Correctly Determined That A Balancing Of The Five Lateness Factors Weighed Against The Admission Of Joint Interveners' Contention On appeal, Joint Interveners argue that the Board erred in concluding
- that a balancing of the five lateness factors weighed against admission of their exercise contention. This argument lacks merit. As explained I below, the Board's determination was correct and should be affirmed.
A. There was not good cause for Joint Interveners' six week delay in filing the contention.
As the Commission itself has noted, the first of the five lateness I
factors -- good cause for filing late - "is a crucial element in the analysis of whether a late-filed contention should be admitted."
Braidwood, supra _, CLI-86-8, 23 NRC at 244. In Braidwood, the Commission also reaffimed the well settled principle that a proponent who " fails to satisfy this element" of the test "must make a ' compelling' showing with respect. to the other four factors." Id.; accord Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982).
Contentions must be filed promptly once information is available which permits them to be formulated. Catawba, CLI-83-19,17 NRC 1048.
Joint Interveners argued before the '.icensing Board that there was good j cause for failing to file the proffered contention before September 16, 1988. However, Joint Interveners admit that they received a copy of NRC
- Inspection Report No. 50-443/88-09 on or about July 15, 1988. See l September 16 Motion at 9. This Staff inspection report forms the basis for Joint Interveners' contention (compare September 16 Motion, Exhibit 1 l
l and accompanying Affidavit of Robert'D. Pollard with Inspection Report 88-09 at 5, attached to September 16 Motion as Exhibit A) and was in 'their possession for more than six weeks prior to the filing of the contention.
It is from the date which this information first was made publicly available (July 6,1988) that the time period for evaluating whether there is good .cause for the untimely filing began to run. .See Metropolitan
. Edison Company (Three Mile Island Nuclear Station, Unit 1), ALAB-815, 22 NRC 198, 201 (1985). This six week period of inaction on Joint Interveners' part precludes a finding of good cause for the delay in filing the proffered contention.
None of the reasons advanced by Joint Interveners for not filing earlier during this period were sufficient to establish good cause. For example, Joint Interveners' asserted that they delayed filing their contention because they needed to review "the exercise scenario documentation" to gain "a proper technical understanding" of the Seabrook personnel's actions which was not received by them until the week of August 15, 1988. September 16 Motion at 9-10. The Board correctly concluded that the Joint Interveners' lack of earlier access to this document did not establish good cav3e. See LBP-89-04, supra, slip op. at
- 9. 5/ The case law is clear that the unavailability of additional licensing-related documents does not establish good cause if information
. 5/ The only example given by Joint Interveners of the need for the exercise scenario documentation is that they had to know "that.One of the exercise objectives was to demonstrate that the onsite staff
- could develop appropriate solutions to reactor problems." Appeal at
- 10. This claim is not credible because a_n_y, on-site emergency planning exercise must per force test the operators' ability to develop " appropriate solutions to reactor problems."
l was publicly available to provide the basis for a more timely filing of the contention. E.g. Catawba, supra, CLI-83-19, 17 NRC at 1045; Id.,
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ALAB-813, 22 NRC 59, 84-85 (1985). Since Joint Interveners' late-filed contention is based on the " weaknesses" in the emergency planning exercise identified by the Staff in NRC Inspection Report 88-09, the Licensing Board appropriately determined that they had access to publicly available information which was sufficient to form the bases for their contention on July 15,1988 (the date they received the NRC inspection report) and thus could have filed that contention by July 29, 1988. LBP-89-04, slip op, at 9.
Joint Interveners also souqht to justify their untimely filing by arguing that the Licensing Board in the "off-site" emergency planning phase of the proceeding afforded the parties in that proceeding until September 21, 1988 to submit contentions challenging off-site aspects of the emergency planning exercise conducted by Applicants and that this served to extend their time to file the subject contention. September 16 Motion at 10. The off-site Board's action was and is decisionally irrelevant as to whether there was good cause for Joint Interveners' untimely filing of the proffered contention in the "on-site" portion of the case. As Joint Interveners were or should have been aware, scheduling orders issued by the off-site Board are applicable only to that proceeding. Moreover, it was or should have been apparent to Joint Interveners that their late-filed contention had the potential for expanding considerably the on-site phase of the proceeding. In view of the advanced stage of the on-site proceeding, it was encumbent upon Joint Interveners to bring their contention to the attention of the Board and
the parties at the earliest possible time. Inexcusably, they failed to do so. For all of these reasons, the Licensing Board correctly found that the first of the five lateness factors -- good cause -- weighed heavily against the admision of Joint Interveners' contention.
B. The availability of other means or parties to protect
. petitioner's interests.
The second factor in 10 C.F.R. 0 2.714(a) -- the availability of other means to protect petitioner's interest -- favored Joint Interveners.
As did the fourth factor: the extent to which petitioner's interest will be represented by other parties. However, as the Commission has observed, these factors are " accorded less weight under established Commission precedent than factors one .three, and five." Braidwood, supra, 23 NRC at 245; South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).
C. The extent to which petitioner can contribute to the development of a sound record.
Commission case law emphasizes the importance of the third lateness factor, the extent to which a petitioner can contribute to the development of a sound record. The Commission has observed that "[w] hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony." Braidwood, supra, 23 NRC at 246, quoting, Grand Gulf, supra, 16 NRC at 1730 (emphasis added).
As the Licensing Board observed, Joint Interveners did not identify by
, name any prospective witnesses in their September 16 Motion. LBP-89-04, slip op. at 10. Nor did thev set out with precision the issues they I
planned to cover or identify their prospective witness by name. Ld .
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Joint Interveners stated only that they would provide an unidentified expert witness "who will analyze the emergency response actions taken by the Seabrook Station staff and describe in detail the manner in which those actions reflect the failure of that staff to comprehend the significance of plant conditions and identify the appropriate measures needed to prevent any further plant deterioration
- and/or further offsite radiological releases." September 16 Motion at 10.
The Licensing Board resolved this factor against Joint Interveners because
"[g] generalities, rather than precise issues, were presented" and stated that it would not "do Interveners' homework for them by the reading the affidavit and then summarizing the proposed testimony." Id. at 11. This determination was not clearly wrong. 6/
I D. The extent to which the contention will broaden the issues or delay completion of the proceeding.
Joint Interveners did not and could not argue that admission of their late-filed contention would not broaden the issues or delay completion of the on-site proceeding. The contention seeks to inject issues that have not been raised previously. It is not unreasonable to assume that Joint Interveners would request an extensive amount of time to conduct discovery and it is fair to say also that in the event the contention is not disposed of summarily, the anticipated amount of hearing time needed to litigate the contention will be substantial. The Board therefore 6/ Even were Joint Interveners' claim accepted that the substance of
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their testimony could be inferred from their pleadings, Appeal at 10, this would not be sufficient to satisfy the " compelling" showing on the third factor which they are required to make in light of the absence of good cause. See Braidwood, supra, CLI-86-8, 23 NRC at 244.
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correctly found that admission of the late-filed contention would broaden the issues.
The Licensing Board also found that admission of the contention would significantly delay completion of the proceeding. LBP-89-04, slip op. at In this regard, it should be noted that the last evidentiary hearing 11.
in the on-site phase of this proceeding was completed in October 1986 and there are no matters relevant to low power operation pending before the Licensing Board. In these circumstances, the Board's conclusion that admission of Joint Interveners' would delay substantially the completion of the proceeding is correct. The Licensing Board therefore weighed the fifth factor in 10 C.F.R. 6 2.714(a)(1) against Joint Interveners.
LBP-89-04, slip op. at 11.
In summary, the first, third, and fifth factors weighed against Joint Interveners; only the second and forth factors weighed in Joint Interveners' favor. The showing made by Joint Interveners on the two factors favorable to them, however, fell far short of the " compelling" showing required to overcome the lack of good cause for the untimely filing of their contention. See Braidwood, supra, 23 NRC at 244. Thus, a balance of all the factors in 10 C.F.R. $2.714(a)(1) supports the Licensing Board's conclusion that Joint Interveners' contention should not be admitted.
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III. Any Error The Board May Have Committed In Subjecting Joint '
Interveners' Contention To The Standards Governing Motions To
, Reopen Is Harmless And Does Warrant A Reversal Of LBP-89-04 Joint Interveners next argue that the Licensing Board erred in applying the reopening standards of 10 C.F.R. $ 2.734 to their contention.
- Appeal at 11-17. While the Staff has not disputed this point 1/,ithas
. no practical or legal significance on the instant appeal. Joint Interveners' contention would have been rejected under 10 C.F.R.
6 2.714(a)(1) even if the Board had not subjected it to the requirements of section 2.734. Therefore, the Board's application of the reopening standards amounts to harmless error and provides no basis for reversing the Licensing Board's decision. 8_/
Z/ From the inception of this controversy, the Staff has argued that the standards governing motions to reopen are inapplicable to Joint Interveners' contention because the June 1988 emergency planning exercise is " material to the licensing decision." See e. .
October 3,1988 Staff Response at at 2 n.1; November 28, 1755 S a Response at 4-5. One of the teachings of the UCS v. NRC decision is that where the issue sought to raised is a matter " material to the licensing decision," a petitioner's statutory hearing rights cannot be conditioned upon its satisfaction of the standards governing the reopening of a closed record. See 735 F.2d at 1443-44. However, as the court recognized different standards might be applied to contentions submitted late in a proceeding. See n.4, above.
- 8/ It should be noted that it was unnecessary for the Board to cetermine ,
Joint Interveners' contention raised a safety issue i whether l significant enough to reopen a closed record because it was apparent i from the Board's evaluation of the five lateness factors that a
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j l motion to reopen could not possibly be granted. Paragraph (d) of 10 C.F.R. 6 2.734 provides that a motion to reopen "which relates to
, a contention not previously in controversy among the parties must also satisfy the requirements for nontimely contentions in 6 2.714(a)(1)(1) through (v)." Since the Board previously had
- determined that the requinnents for nontimely contentions had not been satisfied, Joint Interveners' motion to reopen could have been denied on the sole ground that it failed to satisfy the requirements ofsection2.734(d).
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l IV. Joint Interveners' Exercise Contention Could Not Be Admitted In Any Event Since It Did Not Allege With The Requisite Specificity And Bases A " Fundamental Flaw" In Applicants' Emergency Plan Assuming arguendo that the Licensing Board erred in determining that l Joint Interveners' exercise contention did not satisfy the requirements governing the admission of a late-filed contentions or the reopening of a closed record, such error would not provide a basis for reversing the l decision under appeal. The contention still would be excluded from litigation on the ground that it failed to allege, with the requisite specificity and bases, a " fundamental flaw" in Applicants' emergency plan.
In Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),CLI-86-11,23NRC577,581(1986), the Commission held that only those i
exercise contentions which allege, with supporting bases, a " fundamental l flaw" in the emergency plan may be admitted for litigation. The Appeal Board has defined a " fundamental flaw" as one that " reflects a failure of an essential element of the plan," which "can be remedied only by through !
a si0nificant revision of the plan." Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 505 (1988). E/ In the proceedings below, the Staff presented evidence which established that the exercise " weaknesses" which formed the bases of Joint Interveners' contention are not fundamental flaws because none of them reveals the " failure of an essential element" of the emergency plan that can be remedied only through a "significant revision" of the plan. See j
- Affidavit of Craig Conklin and David Ruscitto at A14-A15, attached to j
-9/ Although the cited cases involve offsite emer0ency planning exercises, the rationale of these decisions is equally applicable to i
an onsite emergency planning exercise contention.
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l November 28 Staff Response. These sworn statements have not been contradicted by any probative evidence. Thus, even were Joint Interveners' contention not subjected to the five factor test or the standards governing motions to reopen a closed record, the contention would have been excluded for failure to allege with the requisite specificity and bases a fundamental flaw in Applicants' emergency plan.
CONCLUSION For the reasons stated in this response, the Appeal Board should deny Joint Interveners' appeal and affirm LBP-89-04.
Ri s etfully submitted, i
Gregory Ali Berr -
Counsel fol RC S aff Dated at Rockville, Maryland l this 15th day of March 1989 1
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C0CHrim UNITED STATES OF AMERICA W NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAlb0gg 20 P4 :05 In the Matter of ) GFm y Docket Nos.N5024435 OL-Ola i PUBLIC SERVICE COMPANY OF 50-4'44 0L201 NEW HAMPSHIRE, et al. On-site Emergency Planning and Safety Issues (Seabrook Station, Units I and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO JOINT INTERVENERS' APPEAL OF LBP-89-04" in the above-captioned proceeding have .been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system, as indicated by double asterisk by telecopier, this 15th day of March 1989: 1 Alan S. Rosenthal, Chairman
- Peter B. Bloch, Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC .20555 Dr. Jerry Harbour
- Thomas S. Moore
- Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Comission Board Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Dr. Emeth A. Luebke Administrative Judge Howard A. Wilber* 4515 Willard Avenue Administrative Judge Chevy Chase, MD 20815 Atomic Safety and Licensing Appeal Board Thomas G. Dignan, Jr., Esq.** l U.S. Nuclear Regulatory Comission Robert K. Gad, III, Esq.
Washington, DC 20555 Ropes & Gray One International Place H. J. Flynn, Esq. Boston, MA 02110 Assistant General Counsel Federal Emergency Management Agency 500 C St eet, S.W.
Washington, DC 20472 I
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L Philip Ahrens, Esq. Judith H. Mizner, Esq, Assistant Attorney General' 79 State Street Office of the Attorney General Newburyport, MA 01950 State House Station Augusta ME' 04333 Robert Carrigg, Chairman Board of Selectmen Stephen A. Jonas, Esq.** Town Office Assistant Attorney General Atlantic' Avenue Office of the Attorney General North Hampton, NH 03862 One Ashburton Place, 19th Floor Boston, MA 02108 William S. Lord Board of Selectmen Geoffrey Huntington, Esq. Town Hall - Friend Street Assistant Attorney General Amesbury, MA 01913 Office of the Attorney General 25 Capitol Street Mrs. Anne E. Goodman, Chairman Concord, NH 03301 Board of Selectmen 13-15 Newmarket Road Diane. Curran, Esq.**- Durham, NH 03824
. Hannon, Curran & Tousley .
Hon. Gordon J. Humphrey 2001 S Street, NW Suite 430 United States Senate Washington, DC 20009 531 Hart Senate Office Building Washington, DC 20510 Calvin A. Canney City Hall Peter J. Matthews, Mayor 126 Daniel Street City Hall Portsmouth, NH 03801- Newburyport, MN 01950
-Allen Lampert Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Brentwood South Hampton, NH 03827 20 Franklin Exeter, NH -03833 Ashod N. Amirian, Esq.
Town Counsel for Merrimac William Armstrong 145 South Main Street Civil Defense Director P.O. Box 38 Town of Exeter Bradford, MA 01835 10 Front Street Exeter, NH 03833 Robert A. Backus, Esq.**
Backus, Meyer & Solomon Gary W. Holmes, Esq. 116 Lowell Street Holmes & Ellis Manchester, NH 03106 47 Winnacunnet Road Hampton, NH 03842 Paul McEachern, Esq.
Shaines & McEachern J. P. Nadeau 25 Maplewood Avenue ;
, Board of Selectmen P.O. Box 360 10 Central Street Portsmouth, NH 03801 Rye, NH 03870 !
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Charles P. Graham, Esq. Atomic Safety and Licensing McKay, Murphy & Graham Appeal Panel (8)*
100 Main Street U.S. Nuclear Regulatory Commission Amesbury, MA 01913 Washington, DC 20555 Sandra Gavutis, Chairman Atomic Safety and Licensing Board Board of Selectmen Panel (1)*
RFD #1, Box 1154 U.S. Nuclear Regulatory' Commission
. Kensington, NH 03827 Washington, DC 20555 R. Scott Hill-Whilton, Esq. Docketing and Service Section*
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Lagoulis, Clark, Hill-Whilton Office of the Secretary
& McGuire U.S. Nuclear Regulatory Commission .i
. 79 State' Street Washington, DC 20555 Newburyport, MA 01950 Barbara J. Saint Andre, Esq.
Kopelman & Paige, P.C.
77 Franklin Street ,
l Boston, MA 02110 C rl/m e ry GregorygT8nBe{ Staff CounsegorNRC C
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