ML19325E954

Joint Intervenors Motion to Order Board to Withhold Initial Decision on Reception Ctr Issues Pending Issuance of Appeal Board Decision on LBP-88-32 Re ALAB-905.* W/Certificate of Svc

ML19325E954
Person / Time
Site:	Seabrook
Issue date:	11/01/1989
From:	Backus R, Brock M BACKUS, MEYER & SOLOMON, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#489-9395 ALAB-905, LBP-88-32, OL, NUDOCS 8911130101
Download: ML19325E954 (8)

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UNITED STATES OF AMENICA NUCLEAR R500LATORY COMMISSION 11 (p -

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ATOMIC 8AFETY AND LICENSING APPEAL BOAR lC: NOV 011989* r i t'efore Administrative Judges 0j teemme a i mgcpgepa, e

G. Paul Bo11werk, III, Chairman Boward A. Wilhar Alan Rosenthal D

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In the Matter of ) Docket No. i 50-443-0L

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PUBLIC SERVICE COMPANY )

OP NEW HAMPSHIRE, ET'AL. ) i

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. (Seabrook Station, Unit 1) ) November 1, 1989

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JOINT INTERVENOR88 MOTION TO ORDER ASLB TO WITHROLD INITIAL DECISION ON ~ RECEPTION CENTER 198UE8 PENDING ISSUANC APPEAL BOARD DECISION ON LBD-88-32 .RfCARDING Aram-901 NOW COME8 the 8eacoast Anti-Pollution League (SAPL) and for e

itself and the Massachusetts Attorney General, New England 4

. Coalition on Nuclear Follution, and Town of Hampton, as joint p intervenors, movae that this Appeal Board order the ASLB to J withhold its initial decision on the so-called reception center issues arising out of contentions concerning the adequacy of the  ;

Seabrook plan for Massachusetts Communities (SPMC) pending resolution of the pending appeals concerning the ASLB's decision '

on the New Bampshire Radiological Emergency Response Plan (NRRERP) planning basis for reception centers in light of ALAB-905. The grounds for the motion are as follows:

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1. In ALAB-905, the Appeal Board invalidated the FEMA '

l l guidance calling for a " minimum" 20 percent planning basis for the l

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so-called reception centers. (The reception centers, of course, i

are intended not only to' receive evacuees in the event of an accident, but also'ho provide monitoring services ands.if necessary, decontamination. The FEMA 20 percent guidance was utilised by the Applicants and staff in litigation of both the NRRERP and the 8PMC as determining the required staffing, '

facilities and equipment necessary for the various reception centers.)

,, 2. Notwithstanding the holding in ALAB-905, decided on i

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November 29, 1988, that the FEMA 20 percent guidance was without sufficient support, the A8LB, in its partial initial decision of December 30, 1988, upheld the 20 percent planning basis as a FEMA

" rebuttable presumption" as to the NHRERP. i

3. The ASLB, in addition, on January 19, 1989, at a

.prehearing conference on the 8PMC litigation, ruled its decision upholding the 20 percent guidance in LBP-88-32, would be 'Isa Audicata" as to the adequacy of the reception centers under the SPMC, and therefore barred any litigation as to the adequacy of ,

the reception center planning basis on the then pending 8PMC litigation.

(February 17, the Commission declined to review ALAB-905.)

4. SAPL, in light of the ASLB holding that ALAB-905 did not preclude general use of the 20 percent planning basis, and the further ruling that this holding was gag judicata for the SPMC litigation, urged early consideration and decision of this issue by the Appeal Board. On February 24, SAPL filed a "Brief of A'

Seacoast Anti-Pollution League in support of Reversal of L5P-88-32 l

in Light of ALAB-905,* and accompanied this brief with a " Notion '

for Expedited Review of L8P-88-32 in Regard to ALAB-905 Issue."

1 5.

Although the Appeal Board refused to accept the SAPL February 24, 1989 brief and denied the motion for expedited review, 8APL renewed its request for en expedited decision on the reception center issue at the duly scheduled oral argument on the appeals of LBP-88-32 held on July 27, 1989. As argued by counsel for SAPL

'Now why is an early decision so important to us? First of all, it is important because all of these rulings,.and the ALAB-905 is a perfect '

esample, as being 'reated as Ian iudienta or collateral estop They are going r,rigat by the Licensing Board.

ahead and applying these same standards in the ongoing litigation on the Massachusetta side of the border. They have expressly ruled in ALAB-905 standard is IAA iuolenta and cannot be cha11enged, althou we think it is directly contrary to ALAB-905.gh (Tran. 42-43.)

6. Although three months have passed since the oral argument on the pending appeals, no decision on this issue has been rendered by the Appeal Bostd, although the Appeal Board did solicit additional submissions from the parties on information pertinent to various reception center issues. The last of those submissions was filed under date of September 27, 1989.

l Accordingly, it may well be the Appeal Board will be able to issue p

l its decision on the ALAB-905 issue as to reception centers in the very near future, as intervenors have urged.

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s L 7. The Appeal Board has the general authority to exercise l

l supervisory jurisdiction over the AsLB, and such jurisdiction is L

particularly appropriate'in the circumstances of this case, since '

the decision on the issue of the reception center planning basis will control the ASLB's decision on the planning basis as to the SPMC in light of the A8LB's "Isa Audicata' holding.

L 8. SAPL atates that, on information and belief, the ASLB L

i intends to issue itt oscision on the SPMC, and the June, 1988 exercise of the SPMC and the NHRERP, on November 9 or 10. '

9. In the interest of adjudicatory efficiency, and a possible avoidance of a further error or, the part of the A8LB, if the joint interveners' position on the reception center issue is -

upheld, the AsLa should be directed to withhold its decision on the adequacy of the reception center planning basis under the SPMC pending decision on this controlling legal issue on this matter by the Appeal Board.

Respectfully submitted, Seacoast Anti-Pollution League By its Attorneys, BACKUS, MEYER & 8OLOMON By  ;

W #t A. Bac Ks, Esquire 116 Lowell Street P.O. Box 516 Manchester, NB 03105 (603) 668-7272

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i 4 James M. Shannon, Attorney General N

sy: '

Matthew T. Brock

" Assistant Attorney General One Ashburton Place Boston, MA 02104 (617) 727-2200 B

Town of Hampton ,

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RORtiRY A. BACRD8 FOR:

Paul McEachern, Esquire shaines & McEachern 25 Ma P.O. plewood son 360 Avenue Portsmouth, NB 03801 .

New England Coalition on Nuclear Pollution  ;

By its Attorneys, Sy: ,

L R0fERT A. BACKUS FOR:

l Diane Curran Esquire

j. Harmon, curra,n & Tousley ,

l 20001 8 Street, N.W. <

Buite 430 Washington, DC 20008 DATED: November 1, 1989 '

I hereb Intervenors'y certify that copies of the foregoing Joint Reception Center Issues Pending Issuance of Appeal Board ,

on LDP-88-32 Regarding ALAB-905 have been furnished b the Appeal Board, the NRC Staff and Thomas G. Dignan,y Jr., telefax to l- attorney for Applicants, and copies have been furnished by mail to-t the remainder of the parties on the attached service list.

By:_ _

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4

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s. f ATOMIC SAFETY AND LICENSING APPEAL BOARD II: U0y 011BBB'"-

Before Administrative Judges, -

DorCU$0^ ' E, G. Paul Bollwerk, Chairman 4 ""((t$a:sca $ ~ ,

Alan S. Rosenthal \

Howard A. Wilber [7;T{Tg{s'/ ,

.In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC. SERVICE COMPANY )

OF NEW HAMPSHIRE, EI AL. )

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(Seabrook Station, Units 1 and 2) ) November 1, 1989

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CERTIFICATE OF SERVICE I, Matthew T. Brock, hereby certify that on November 1, 1989, I made service of the enclosed JOINT INTERVENORS' MOTION TO ORDER l- ASLB TO WITHHOLD INITIAL DECISION ON RECEPTION CENTER ISSUES l

PENDING ISSUANCE OF APPEAL BOARD DECISION ON LBP-88-32 REGARDING l ALAB-905 by telef ax as indicated by (**) , and by first class mail L

I to:

Ivan W. Smith, Chairman Kenneth A. McCollem

l. Atomic Safety & Licensing Board 1107 W. Knapp St.

l U.S. Nuclear Regulatory Commission Stillwater, OK 74075 l East West Towers Building 4350 East West Highway I l 'Bethesda, MD 20814 l

Dr. Richard F. Cole Robert R. Pierce, Esq.

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway i Bethesda, MD 20814 Bethesda, MD 20B14 1

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L 3-L ** Docketing end Service ** Thomas G. Dignan, Jr. '

l U.S. Nuclear Regulatory Commission Ropes & Gray  !

b Washington, DC 20555 One International Place l l Boston, MA 02110 l f **Mitzi A. Young, Esq, Phillip Ahrens, Esq.

i l Edwin J. Reis, Esq. Assistant Attorney General u

U.S._ Nuclear Regulatory Commission Department of the Attorney General .

Office of the General Counsel Augusta, ME 04333 I 11555 Rockville Pike, 15th Floor 1 Rockville, MD 20852 H. Joseph Flynn, Esq. ** Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 1

1 Agency 500 C Street, S.W.

Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106 Jane Doughty Dianne Curran, Esq.

Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.

Kopelman & Paige, P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirlan, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn: Tom Burack)

Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301

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Paul McEachern, Esq. William S. Lord Shaines & McEachern Board of Selectmen 25 Maplewood Avenue Town Hall - Friend Street Portsmouth, NH 03801P.O. Box 360 Amesbury, MA 01913

• • G. Paul Bollwerk, Chairman ** Alan S. Rosenthal Atomic' Safety & Licensing Atomic Safety & Licensing -

Appeal Board Appeal Board ^

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission',

Washington, D.C. 10555 Washington, D.C. 10555

• • Howard A. Wilber -

Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commissior.

Washington, D.C. 10555 Respectfully submitted, JAMES M. SRANNON ATTORNEY GENERAL >

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Matthew T.-Brock '

Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 l Dated: November 1, 1989 i'

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