ML19327B701
| ML19327B701 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/26/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#489-9373 LBP-89-28, OL-1, NUDOCS 8911060368 | |
| Download: ML19327B701 (12) | |
Text
g 3-Us :
1 a
i
'4 OnLKETED U91RT
.)
- ' D h agg ggsh11:26
{
i 14 UNITED STATES OF J.! ERICA NUCLEAR REGULATORY COMMISSION k
befors the ATOMIC SAFETY AND LICENSING APPEAL BOARD l
)
In the Matter of
)
)
.PUBLIC SERVICE-COMPANY OF
)
Docket Nos. 50-443-OL-01 NEW HAMPSHIRE, et al.
)
50-444-OL-01
)
Low-Power Tecting Issues (Seabrook Station, Units 1 and 2)
)
)
)
APPLICANT 8' RESPONSE TO APPEAL BOARD ORDER OF OCTOBER 23, 1989 AND (MASS AG) NOTION FOR EXPEDITED APPEAL Under date of October 20, 1989, the Attorney General for the Commonwealth of Massachusetts (" Mass AG") filed a Notice of Appeal purporting to appeal "LBP-89-28, dated October 12, 1989,-the Memorandum and Order of the Seabrook Licensing Board denying Intervenors' motions to admit low power testing contentions and bases or to reopen the record, and requests "1
Under the same date, Mass AG also for hearing.
y filed a motion requesting that an expedited briefing l:
Notice of Appeal (October 20, 1989).
8911060368 891026 h
PDR ADOCK 05000443 G
PDR T
TT--e 7
e l
schedule, as proposed by Mass AG, be established for Mass AG's purported appeal.2 In response to these two filings, on October 23 the Atomic Safety and Licensing Appeal Board issued an order requiring Applicants and the NRC Staff to respond to Mass AG's motion, and.also to " address the current appealability" of LBP 28, no later than Friday, October 27.3 Pursuant to that order, Applicants respond herein.
I. APPEALABILITY OP LBP-89-28 The Licensing Board's decision of October 12, 1989 is not appealable at this time, as it does not constitute a " final" decision for purposes of appeal.
As this Board has repeatedly held, "a licensing board's action is final for appellate purposes where it either disposes of at least a major segment of the case or terminates a party's right to l
participate; rulings which do neither are interlocutory."'
The second test clearly is not met, since Mass AG (and the other intervenors) still have a myriad of other contentions i
2 Motion for Expedited Appeal (October 20, 1989) l (hereinafter " Motion").
3 grAir (October 23, 1989).
Subsequent to that order, the l
Seacoast Anti-Pollution League ("SAPL") filed a Notice of Appeal I
joining in Mass AG's appeal of LBP-A9-28.
S.gg Notice of Appeal on Behalf of Seacoast Anti-Pollution League (October 25, 1989).
Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-917, 29 NRC 465, 468 (1989),
cuoting Eg]2.lic Service Company of New Hamoshita (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632, 636 (1988). m expro.us l
hr and issues pending before the Licensing Board, this Board, and the Commission.
Nor is the first test met; Mass AG's
' allegations arising from "an aberration" at the very and of 5
an otherwise fully satisfactory low-power testing program do not constitute "a major segment of the case."
In its anpublishnd Memorandum and order of August 1,
- 1989, this Board considered the question of whether the "onsite" licensing board a disposition of Mass AG's attack on i
Applicants' mobile siren alerting system constituted "a major, rather than merely a discrete, segment of the proceeding."' The Board concluded that it did not.
Given that Mass AG's broad-front assault on virtually every facet of Applicants' siren notification system does not constitute a " major segment" of the case for purposes of finality, then clearly his allegations concerning a single isolated incident during low-power tasting do not amount to a major segment.7 5
Egg LBP 8, 30 NRC ___, slip op. at 42 (October 12, 1989) ; AAR #112 id. at 20, 21, 42-43.
l' Memorandum and Order (August 1, 1989), slip. op. at 2.
7 Indeed, it is far from clear that the low-power contentions even constitute a " discrete" segment.
At least one contention concerning on-site performance is presently before the Licensing Board for decision in its ruling on the adequacy of Applicants' Seabrook Plan for Massachusetts communities and 1988 exercise performance.
Egg Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-916, 29 NRC 434 (1989).
Mass AG has also tendered two contentions concerning the 1989 on-site exercise to the Licensing Board and has informed the Board and parties that it may be filing more.
Egg Intervenors' Motion to A4mit_ Contentions on the Gentember 27, 1989 Emercency Plan Exercist (September 28, 1989), and Intervenors' Second JPTEXFED.NH
- - - - ~
Accordingly, LBP-89-28 is not an appealable final decision.
Mass AG's " Notice of Appeal" therefore is premature and should be dismissed.s II.
TER MOTION FOR EXPEDITED APPEAL Assuming, arguendo, that appeal of LBP-89-28 were appropriate'at this time, this Board should nonetheless deny Mass AG's. motion for a radical truncation of the schedule for briefing the appeal, for at least two reasons.
First, Mass AG has failed to make the showing of good cause required for i
the granting of his motion.
Second, the schedule he proposes is neither appropriate nor fair.
A motion to shorten the time otherwise allowed for the l
l filing of appellate briefs may be granted only upon a showing of " good cause."
10 C.F.R. 5 2.711(a).
M&ss AG's Motion Motion to Admit Contastions on the Seotember 27. 1989 Emeraency Plan Exercise (October 13, 1989).
Finally, Mass AG has stated that more low-power contentions, in addition to those rejected by the Board in LBP-89-28, nay well be forthcoming:
"Intervenors I
anticipate further filints in the form of additional bases or l
further contentions based on not-yet-available-but-expected-L information."
Intervenors ' Motion for Leave to Add Bases to Low I
Power Testina Contention Filed on July 21. 1989 and to Admit Further Contentions Arisina from Low Power Testine Events or, in the Alternative, to Raooen the Record and Second Recuest for Hearina at 5 (August 28, 1989).
Thus, if LBP-89-28 were to be appealed now, while other on-site issues were still pending and/or about to be filed before the Licensing Board, there could occur just the sort of piecemeal review of related issues which l
this Board rejected in ALAB-917.
8 l
For the same reasons, the Notice of Appeal filed by SAPL l
on October 25, 1989 is also premature, and should be dismissed.
333 Applicants' Motion to Strike Notices of Appeal (October 26, 1989), flied herewith.
, m rxtro.ws i
l-
.~ ~
- ~..
i i
makes no such showing.
Mass AG's argument,' as Applicants l
understand it, is that expedition is warranted because some l
unspecified portion of one of the contentions rejected by the l'
o l
In the course of making this argument, Mass AG makes a number of subsidiary misstatements.of fact and mischaracterizations of the record which, mindful of this Board's warning in ALAB-917, 29 NRC at 471, Applicants feel impelled to take issue with.
They include:
Mass AG repeatedly states that the NRC has suspended Applicants' low-power license.
Motion at 3, 6 and n.8.
In fact, the Licensing Board found that no suspension has occurred.
LBP-89-28 at 12 ("We accept the Confirmatory l
Action Letter at face value; it is not a suspension within the meaning of the (Atomic Energy) Act and no hearing rights ensue from it to the Intervanors.")
Mass AG asserts that "[t]he Licensing Board did not dispute Intervenors' assertion that 'the issues proffered in the contention are material and relevant to the grant of a full-power license.'"
Motion at 5.
To the contrary, the Licensing Board expressly rejected Intervenors' training allegations on the grounds that they did not allege
~
fundamental flaws and thus were not material.
LBP-89-28 at 24-25.
Mass AG states that "[b]y conference call on October 19, 1989, the Licensing Board advised the parties of its intent to issue the PID on emergency planning for Massachusetts communities by November 10, 1989."
Motion at 2 n.3.
This statement is simply untrue.
What the Board did say during that call was that it now believed the November 30, 1989 target date for its final decision to be reasonably attainable, and that in fact it might even be able to issue its decision a week or two earlier.
No new deadline was set, and November 10 was never once mentioned.
Mass AG claims that "the Licensing Board found that portions of Intervenors (sic) contentions ' meet the threshold test for alleging " fundamental flaws" as required by ALAB-903.'"
Motion at 4.
Mass AG neglects to mention that the Board made this " finding" only tentatively "in a judgment call for the sake of completeness."
LBP-89-28 at
- 24. mexno.nu
i 1
6 1
Licensing Board in LBP-89-28 was rejected solely on the basis l
of failing to meet the requirements for reopening a closed record under 10 C.F.R. 5 2.734."
The argument goes on to i
the effect that, because application of 5 2.734 is so grievous an error as to be " plainly ' steering what is bound 1
to be a collision course with governing legal principles,'""
Mass AG is-entitled to expedited review of all of LBP-89-28 (presumably including.those portions of the decision which rejected other contentions and portions of contentions, on additional or other grounds)."
Prescinding from the fact that Mass AG is trying to bootstrap himself into an expedited appeal of all of his contentions due to an alleged error in the resolution of one unspecified portion of one contention, and accepting arguend2 that Mass AG is correct that that mystery portion was excluded solely on the basis of 5 2.734," the Motion still Motion at 4.
Id. at 7.
Id.
u In fact, it is not at all clear that the Board did not have at least three independent reasona for rejecting all of Intervenors' July 21 contention.
Aside from 5 2.734, the Board found that Intervenors had not carried either the third (contribution to the record) or fifth (delay) factors of the "five factor test" of 5 2.714.
LBP-89-28 at 44-45.
Failure as to those two factors is sufficient, in and of itself, to foreclose admission of a contention.
Egg Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LEP-89-3, 29 NRC 51, 59, aff'd, ALAB-915, 29 NRC 427 (1989).
Moreover, the Board also stated that it lacked the jurisdiction to grant the m cxtro.wn - - -
L'
)
L*
fails to show good cause for the-truncated briefing schedule l'
. proposed.
The thrust of Mass AG's argument is that, when a decision l-is so erroneous as to be " plainly ' steering what is bound to be a collision. course with governing legal principles,'" then public policy demands expedited rtview.
This proposition has no basis in logic, and no support in the law of this agency.
The case cited by Mass AG, Tennessee Vallev Authority (Clinch River Breeder Reactor Plant), ALAB-330, 3 NRC 613 (1976), did not address the question of expedited review.
Instead, ALAB-l l
330 merely denied reconsideration of an earlier decision denvina directed certification of certain licensing board decisions.
The " collision course" test established in that earlier decision, and echoed in ALAB-330, relates to certification of issues for review, not expedition in review.
Indeed, logic would dictate that, when so important an error is alleged, full and careful briefing of the issues involved, rather than hurried and truncated briefing, is in order.
It should not lightly be assumed, as Mass AG charges here, that a licensing board has committed such monstrous error as to constitute " bad faith.""
relief--interference in an enforcement proceeding relating to low-power testing--sought by Intervenors.
LBP-89-28 at 9, 12 13.
Motion at 5.
m exrro.us _
' Full and careful consideration is especially warranted in this case, where the " error" alleged by Mass AG is the-
)
Licensing Board's adherance to 10 C.F.R. 5 2.734, which regulation Mass AG contends was invalidated by'two decisions of the, United States Court of Appeals for District of Columbia Circuit even before the Commission' adopted it."
Prescinding from the fact that no adjudicatory board, including this one, has the power to pass upon the validity of a regulation duly promulgated by the Commission," where the issue is one so weighty as the validity of 5 2.734, hasty briefing clearly is not warranted.
Moreover, the schedule proposed by Mass AG is unreasonable.
Mass AG offers to file his brief on October 27 and then requires the Applicants and Staff to file their responses by November 3.'I Eviin assuming Mass AG hand-delivers his brief to Applicants and Staff before the close of business on October 27 (and he makes no promise to do so),
those two parties are given only seven days to respond to 1
what no doubt will be an extensive and complex appeal from a 55-page-long, multi-faceted Licensing Board decision filled with alternate holdings, jurisdictional limitations, and other intricacies.
Furthermore, as Mass AG is aware, Id. at 5, 6-7.
'I Motion at 1.
' mzxno.wa
- -.~..
..[
t
' November 3.also happens'to be the day by which the Commission has required Applicants to file their brief on the issue certified to the Commission in ALAB-922."
Thus, even if good'cause~for expedition were shown to exist (and-it has not
'been), Mass AG's proposed briefing schedule is neither L
L realistic nor fair.
CONCLUSION
.For the reasons stated above, Mass AG's and SAPL's notices of appeal.should be dismissed'as premature, or if appeal is allowed,.the Motion for Expedited Appeal should be denied.
Respectfully submitted, l
4 Thoma's G.
Dignan, Jr.
~
l.-
l George H. Lewald L
Jeffrey.P. Trout Jay Bradford Smith Geoffrey C. Cook f
William L. Parker t
l Ropes & Gray L
One International Place
'~
Boston, MA 02110-2624 (617) 951-7000 l
l l
L l
l l
Order (October 13, 1989) at 2. Jetzxrso.us l
l'
. - ~.
. - -,, _, ~. _ _ -.. -
r C},p i CERTIFICATE OF SERVICE 1, Jeffrey P. Trout, one of the attorneys for the '89 OCT 30 A11:26 Applicants herein, hereby certify that on October 26, 1989, I made service of the within dor c.ent by depositing copies,.
where indicated, by depositing in the United States ma$r(or,3thereof with Feder first class postage paid, addressed to):
G.
Paul Bollwerk, III Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Thomas S. Moore, Chairman Mr. Richard R. Donovan Atomic. Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.
East West Towers Building bothell, WA 98021-9796 i
4350 East West Highway I
Bethesda, MD 20814 Administrative Judge Ivan W.
H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway Dethesda, MD 20814 Administrative Judge Richard F. Cole Gary W. Holmes, Esquire Atomic Safety and Licensing Board Holmes & Ells U.S. Nuclear Regulatory Commission 47 Winnacunnet Road East West Towers Building Hampton, NH 03842 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.
Judith H. Mizner, Esquire I
l McCollom 79 State Street,.2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 i
l
=
John P. Arnold, Esquire Robert R. Pierce, Esquire Attorney General Atomic Safety and Licensing i
George Dana Bisbee, Esquire Board
)
Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street East West Towers Building Concord, NH 03301-6397 4350 East West Highway Bethesda, MD 20814 Mitzi A'. Young, Esquire Diana Curran, Esquire Edwin J. Reis, Esquire Andrea C.
Forster, Esquire Office of the General Counsel Harmon, curran & Tousley 1
U.S. Nuclear Regulatory Commission Suite 430 one White Flint North, 15th Fl.
2001 S Street, N.W.
1 11555 Rockville Pike Washington, DC 20009 Rockville, MD 20852 Adjudicatory File Robert A. Backus, Esquire Atomic Safety and Licensing 116 Lowell Street Board Panel Docket (2 copies)
P.O.
Box 516 U.S. Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Mr. J. P. Nadeau Appeal Board Selectmen's Office U.S. Nuclear Regulatory 10 Central Road Commission Rye, NH 03870 l
Washington, DC 20555 Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General Department of the Attorney Department of the Attorney l
General General Augusta, ME 04333 One Ashburton Place, 19th Fl.
Boston, MA 02108 Paul McEachern, Esquire Mr. Calvin A.
Canney Shaines & McEachern City Manager l
25 Maplewood Avenue City Hall L
P.O.
Box 360 126 Daniel Street l
Portsmouth, NH 03801 Portsmouth, NH 03801 L
Chairman R. Scott Hill-Whilton, Esquire i
Board of Selectmen Lagoulis, Hill-Whilton &
95 Amesbury Road Rotondi Kensington, NH 03833 79 State Street l
Newburyport, MA 01950.
l s:
- senator Gordon J. Humphrey Barbara J. Saint Andra, Esquire U.S. Senate Kopelman and Paige, P.C.
Washington, DC 20510 77 Franklin Street (Attn Tom Burack)
Boston, MA 02110
- Senator Gordon J. Humphrey Mr. William S.
Lord One Eagle Square, Suite 507 Board of Selectmen Concord, NH 03301 Town Hall - Friend Street (Attnt' Herb Boynton)
Amesbury, MA 01913 Mr. Thomas F. Powers, III Richard A. Hampe, Esquire Town Manager Hampe and McNicholas Town of Exeter 35 Pleasant Street 10 Front Street Concord, NH 03301 Exeter, NH 03833 Ashod N. Amirian, Esquire 145. South Main Street P.O. Box 38 Bradford, MA 01835 G. Paul Bollwerk, III, Chairman Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
)
Jef f#ey" P. Trout g
(*= ordinary U.S. First Class Mail.)
l L
o 1
1 '
\\
l
..