_ _ _

SY!

$7 68',e

-[I January 26,Dggg{0

UNITED STATES OF AMERICA 10 Jyl 30 PS:27NUCLEAR REGULATORY COMMISSION

OrrtCE EF SECRETARYbefore the iUURid)G ? WVif1

: 2N>i

ATOMIC SAFETY AND LICENSING BOARD_

)In the Matter of )

)PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL

NEW HAMPSHIRE, et al. ) 50-444-OL) Off-site Emergency

(Seabrook Station, Units 1 and 2) ) Planning Issues))

lAPPLICANT 88 MOTION TO DISMISS

ABANDONED REMAND ISSUES.

1

Applicants hereby move that the Board dismiss, as j

abandoned, those portions of SAPL's NHRERP Contentions 15,

18, 25 which were remanded to the Licensing Board by the

Appeal Board in ALAB-924. In support of their motion,

Applicants state the following:

1. In ALAB-924, the Appeal Board remanded for further

consideration by the Licensing Board, inter alia, issues.

1

concerning. j

'

a) the consistency of the Licensing Board's finding.that'

t

LOAs are not required for New Hampshire school. teachers i!

i'

90020B0090 900126 'PDR ADOCK 050004430 PDR

h60

C.. . . _ _ _ _ _ _ - . . - _ _ _ _ _ - - _

,

y.who may accompany children- on evacuation buses,' which |*

1

issue arose and was litigated under SAPL Contention 15;2 ;

b) such material issues of fact'concerning the adequacy i

of the March 1986 NHCDA special needs survey as survived

Applicants' previous motion for partial summarydisposition of SAPL Contentions 18 and 25;3 and

c) whether loading time for ALS patients in the two New

Hampshire EPZ hospitals (the only special facilit;ies

containing ALS patients, TI. 4295) has been included in

the ETEs,' which issue was raised and litigated under|

SAPL Contention 25.5 ,

| 2. Each of these three issues, as noted.above, arose and was

litigated under a contention proffered by the Seacoast

Anti-Pollution League ("SAPL"). Moreover, the survey and

ALS issues (b and c above) were litigated and appealed

solely by SAPL.

| .3. On January 11, 1990, this Board. issued an order invitingL

_

the parties to offer their suggestions as to a procedure

1 Public Service ComDany of New Hamnshire (SeabrookStation, Units 1 and 2), ALAB-924, 30 NRC slip. op. at 11,

(Nov. 7, 1989) (hereinafter "ALAB-924" and cited to slip. op.].

2M. at 8.

3M. at 19.

'M. at 26-27.

|5 Seacoast Anti-Pollution Leacue's Brief on ADDeal of the

Partial Initial Decision on the NHRERP LBP-88-32 at 35, 41-42'

(' March 21, 1989); 31g also ALAB-924 at 24.

-2-

- . - - - . - - _ - .- . ... . . . - .

. .

V ,1

I E,

for resolving, to the extent necessary, these three lb

issues and the one other remanded by ALAB-924. Ini

t

response to that order, counsel for SAPL on January 19!

| sent to the Licensing Board a letter, a copy of which is

-attached heroto as Exhibit 1. In this letter, SAPL point

i blank refuses to participate in any further proceedings ,

I

as to the remanded issues:

" Surely the members of this Board could not

f expect SAPL to have the least interest whatsoever inany further proceedings before.the Board, given thefact that the Board has decided the issue in the

! case by directing the 'immediate authorization' for

L a full power nuclear license. !

1

"Perhaps the Board has forgotten that SAPL,

intervened in this proceeding to oppose the issuance|

of a nuclear license for Seabrook. It did notintervene in this proceeding for the sake of beingin the proceeding, and it has no intention ofserving as an uncompensated emergency planner forFEMA, NRC or the New Hampshire Emergency ManagementAgency."6

| 4. Thus SAPL, the sponsor and'(except for the LOA issue)

sole advocate of these three issues, has abandoned them.7

' SAPL's position on the remanded issues, that it'will'notparticipate in order to enhance emergency plans but only if itcan block license issuance, is consistent with its prior conductin these-proceedings. Egg,-gig., SAPL Answer to Aeolicants'Motion'to Comoel and Motion for Protective Order (Dec. 19, 1988).

7 In a footnote, SAPL states that "if it comes to pass thatthese new proceedings involve licensing, SAPL'will again be aparticipant." It is far from clear what SAPL meant by this '

passage; however SAPL may have been trying to say that if theprocedural posture of the case were. altered and these issues wereagain potential license blockers, SAPL would then reenter thelitigation. Although it is not necessary to resolution of thismotion given SAPL's unambiguous present withdrawal, Applicantsnote that SAPL is simply wrong in asserting that it may abandon-

-3-

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

II- _. ,_. - -_ - - _ _ _ _ _ _ _ - _ _ - _ -

e;7 .- .

4' ,

i

!

They accordingly should be-deemed withdrawn, and the",

contentions underlying them dismissed.s

5. Moreover, even if SAPL were now to argue that it did not

intend to withdraw its contentions,.the issues should

nonetheless be dismissed as a sanction for SAPL's

contumacious response'to the Board's order. 10 C.F.R. S ,

2.707; gag also id. 5 2.713(c). More than a decade ago

in these proceedings, when counsel for SAPL engaged in-

similar misconduct, the Appeal Board admonished him that:

"We expect, however, that in future SAPL/Audubonwill not take it upon themselves to make unilateraldecisionsregardingtheneedtofulfiglobligationsimposed by directives of this Board."

The Appeal Board's expectations have not been realized.

Rather, SAPL continues to display its contempt for the orders

and resurrect issues at will. Egg, gig., Consumers Power Co.(Midland Plant, Units 1 and 2) , ALAB-691, 16 NRC 897, 907 (1982);Northern States Power Co., (Prairie Island Nuclear GeneratingPlant, Units 1 and 2), ALAB-288,'2 NRC 390, 393 (1975); Boston

,

L Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-76- .

7, 3 NRC 156 (1976).' ''

s Nor may any of the other Intervenors-pick up theseissues, given that they deliberately left prosecution of them toSAPL and thus ran the risk that SAPL would withdraw. HoustonLichtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 382-83 (1985); 333 also , Texas Utilities ElectricC22 (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-

| 88-12, 28 NRC 6051(1988); Ruke Power Co. (Cherokee NuclearStation, Units 1, 2 and-3),_ALAB-440, 6 NRC 642 (1977);- comDarePublic Service Comoany of New Hamoshire (Seabrook Station, Units1 and 2), LBP-86-22, 24 NRC 103 (1986).

' Public Service Company of New Hamoshire (SeabrookStation, Units 1 and 2) ALAB-488, 8 NRC 187, 191 (1978).

-4-

;

i

- - , , - , -m -- ,, < ,,v- , - y ,,

f... . -- - .- - . . -

*

.. .

,...

i

of this Board,=and should now finally be required to face the'

consequences.! i

By their attorneys,

/ h R:W.

4 ||

Thomas G. Dignan, Jr.George H. LewaldJeffrey P. . Trout

i Jay Bradford Smith- r

Geoffrey C. CookWilliam L. Parker

Ropes & Grayone International PlaceBoston, MA 02110-2624(617) 951-7000

,

1 .

-S-

~. . . . . ..

^'

gg , _ ,

N$..g >

~

i

$! 00CKETEDer' USNRC

,F

90 JE 30 P5:27CERTIFICATE OF SERVICE

I, Jeffrey P. Trout, one of the attorneys for h h h h aherein, hereby certify that on January 26, 1990, I madeisdFVice '

of the within document by depositing copies thereof with FederalExpress, prepaid, for delivery to (or, where indicated, by |

depositing in the United States mail, first class postage paid,addressed to):Administrative Judge Ivan W. Smith Adjudicatory FileChairman, Atomic Safety and Atomic Safety and Licensing i

Licensing Board Board Panel Docket (2 copies)U.S. Nuclear Regulatory U.S. Nuclear Regulatory

Commission CommissionEast West Towers Building East West Towers Building4350 East West Highway 4350 East West HighwayBethesda, MD 20814 Bethesda, MD 20814

Administrative Judge Richard F. Cole Robert R. Pierce, EsquireAtomic Safety and Licensing Board Atomic Safety and Licensing |

U.S. Nuclear Regulatory Commission BoardEast West Towers Building U.S. Nuclear Regulatory4350 East West Highway Commission !

Bethesda, MD 20814 East West Towers Building4350 East West HighwayBethesda, MD 20814

;

Administrative Judge Kenneth A. Mitzi A. Young, EsquireMcCollom Edwin J. Reis, Esquire

1107 West Knapp Street Office of the General CounselStillwater, OK 74075 U.S.' Nuclear Regulatory

Commission:i

One White Flint North, 15th Fl. i

11555 Rockville PikeRockville, MD 20852

George Dana Bisbee, Esquire Diane Curran, EsquireAssociate Attorney General Andrea C. Ferster, Esquire' Office of the Attorney General Harmon, Curran & Tousley25 Capitol Street Suite 430 |Concord, NH 03301-6397 2001 S Street, N.W. :

Washington, DC 20009,

i

* Atomic Safety and Licensing Robert A. Backus, EsquireAppeal Board 116 Lowell Street

U.S. Nuclear Regulatory P. O. Box 516Commission Manchester, NH 03105

Washington, DC 20555

:

4

_mm.m_ _ . _ _ _ _ _ . . - . _ _ _ _ _ _

. . . _

q, y ';

r.

.fcs Philip Ahrens, Esquire Mr. J. P. Nadeau/ Assistant Attorney General Selectman's Office

Department of the Attorney 10 Central Road( General Rye, NH 03870

Augusta, ME 04333

Paul McEachern, Esquire John Traficonte, EsquireShaines & McEachern Assistant Attorney General25 Maplewood Avenue Department of the AttorneyP.O. Box 360 GeneralPortsmouth, NH 03801 One Ashburton Place, 19th Fl.

Boston, MA 02108

Chairman Mr. Calvin A. CanneyBoard of Selectmen City Manager95 Amesbury Road City Hal)Kensington, NH 03833 126 Daniel Street

I Portsmouth, NH 03801

* Senator Gordon J. Humphrey R. Scott Hill-Whilton, EsquireU.S. Senate Lagoulis, Hill-Whilton &Washington, DC 20510 Rotondi(Attn: Tom Burack) 79 State Street

Newburyport, MA 01950

* Senator Gordon J. Humphrey Barbara J. Saint Andre, EsquireOne Eagle Square, Suite 507 .Kopelman and Paige, P.C.Concord, NH 03301 77 Franklin Street(Attn: Herb Boynton) Boston, MA 02110

Mr. Thomas F. Powers, III Mr. William S. LordTown Manager -Board of SelectmenTown of Exeter Town Hall - Friend Street10 Front Street Amesbury, MA 01913Exeter, NH 03833

H. Joseph Flynn, Esquire Judith H. Mizner, EsquireOffice of General Counsel 79 State Street, 2nd FloorFederal Emergency Management Newburyport, MA 01950Agency

500 C Street, S.W.Washington, DC 20472

Gary W. Holmes, Esquire Ashod N.-Amirian, EsquireHolmes & Ells 145 South Main Street47 Winnacunnet Road P.O. Box 38Hampton, NH 03842 Bradford, MA 01835

-2-

|

..._ _

- ;c-.

.

, g -'1*ip

b|:pF Mr. Richard R. Donovan Mr.-Jack Dolan

Federal Emergency Management Federal Emergency ManagementAgency Agency - Region I

Federal Regional Center J.W. McCormack Post Office &130 228th Street, S.W. Courthouse Building, Room 442Bothell, Washington. 98021-9796 Boston, MA 02109

George Iverson, DirectorN.H. Office of EmergencyManagement

State House Office ParkSouth *

107 Pleasant StreetConcord, NH 03301

^

f .g'JBEftey P. Trout

(*= Ordinary U.S. First Class Mail)

-3-

|

2--A-.-..: -J 4 W .i w4 - * .-eW- J.-%s e--- e awa-e 4- - - - --- _ # - . -'

| J-.

.; 1.

|< ,

Exhibit 1 #

'

B AC KUS. M EYER G SOLOMON-

AttoRNtys At uw i

its Lowtu. STmtcTROBERT A.DACKUsson Mtytn' P. o. Box Ble TE LE COPIE R '

,,o3,,...o,3ostevtN A SOLOMON M ANC H ESTER. N. H. ostosMICHAEL t. IPAvtc ,,t o ,omy,go

too3s 666 7273 To MAstACMusttTs saRB J. BRANCH

,

January 19, 1990

.

I Administrative Judges'

Ivan W. Smith, Chairman| Dr. Richard F. Cole'

Dr. Kenneth A. McCollomUS NRCWashington, DC 20555

Re: In the Matter ofPublic Service Company of New Hampshire, et al.(Seabrook Station, Unit 1)Docket No. 50-443-OL

Dear Administrative Judges:

Three days ago I received the Board's Memorandum and Order ofJanuary 11, 1990, the purpose of which was "to provide to ,

interested parties an opportunity to advise the Board on how to'

proceed-in accordance with the directives of ALAB-924 and'how theyproposed to participate in the resolution'of the remandedissues."

My first reaction was that this Order must be in jest.- Surely,the members of this Board could not expect-SAPL to have the leastinterest whatsoever in any further proceedings before the Board,given the fact that the Board has decided the issue in the case by

'

directing the "immediate authorization" for a full power nuclear-

license.

Perhaps the Board has forgotten that SAPL intervened in thisproceeding to oppose the issuance of a nuclear license forSeabrook. It did not~ intervene in this proceeding for the sake ofbeing in the proceeding, and it has no intention of-serving as an-uncompensated emergency planner for FEMA, NRC, or the New.Bampshire Emergency Management Agency.

. . _ . . - -

__ __ _ - _ _ - -- .. . -- - - - -- --_

: a.; !

'

i e

i/ ;

| /.

Administrative JudgesIvan W. Smith, Chairman !

'

Dr. Richard F. Cole "

Dr. Kenneth A. McCollomPage 2January 19, 1990

R

I

In case the Board has forgotten SAPL's position in this matter, weenclose a copy of SAPL's Opening Stater.4ent. SAPL's positionremains what it hps been, there is no " adequate" emergency ,

'

plan for SeabrookA, adequate emergency planning at Seabrook mayindeed not be feasible, and therefore no nuclear license should be t

issued.u

Respectfully submitted,

Seacoast Anti-Pollution LeagueBy-its Attorney,

fff/a

Robert A. Backus' RAB jsr "

Enclosure.

9

l"

If it comes to pass that these new proceedings involve-licensing, SAPL will again be a participant.

. . . . . . . _ . . _ _ - . - . . _ . __ - _