ML19332D990
| ML19332D990 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/30/1989 |
| From: | Lisa Clark NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#489-9541 ALAB-922, ALAB-924, LBP-88-32, LBP-89-32, OL, NUDOCS 8912060107 | |
| Download: ML19332D990 (12) | |
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BEFORE THE COMMISSION In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et g.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2) 7 NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF COMMISSION'S NOVEMBER 16 ORDER D
Lisa A. Clark Counsel for NRC Staff November 30, 1989
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION of
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE-THE COMMISSION In the Matter of
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Docket Nos. 50-443 OL i
PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et d.
Off-site Emergency Planning' (Seabrook Station, Units 1 and 2)
Nke STAFF RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF COMMISSION'S NOVEMBER 16 ORDER l'
Lisa A. Clark Counsel for NRC Staff
-November _ 30, 1989
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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION u
In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.
Off-site Emergency Planning (SeabrookStation, Units 1and2)
NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF COMMISSION'S NOVEMBER 16 ORDER INTRODUCTION
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On November 17, 1989, the Massachusetts Attorney General, the New England Coalition on Nuclear Pollution and the Seacoast Anti-Pollution League
("Intervenors") filed a motion II requesting that the Commission recon-sider its Order of November' 16, 1989.
For the reasons discussed below, the NRC Staff opposes Intervenors' Motion..
DISCUSSION The Commission's Order-of. November 16, 1989, (" Order") provided that
- "in the interest of efficiency and effectiveness in resolving matters relating to the Licensing Board's authorization of the issuance of a full power. license, the Commission has decided that it rather than the Appeal Board will consider all applications for stay of the Licensing Board's authorization of full power operation of Seabrook Unit 1", (Order at 1-2),
as it was already considering several matters pertinent to the authoriza-l E
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Intervenors' Motion For Reconsideration of Commission's November 16 Order (" Motion"),
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tion' to' issue a faill power license.
Those matters included.the mandated "imediate effectiveness" review under 10 C.F.R. 6 2.764(f)(2), the issues certified to the Comission by the Appeal Board in ALAB-922 involving the nature of the emergency planning regulation, and the petition for review of ALAB-924 by which issues were remanded to the Licensing Board for further consideration. U
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In arguing that the Order should be reconsidered, Intervenors imply
~ that the Comission does not' have "the power to take stay applications pursuant.to 10 C.F.R S 2.788 away from-the Appeal Board" (Motion at 11, footnote omitted), but provide no support for this notion.
In fact, the regulations specifically provide that the Commission may decide to review the merits of particular issues itself in announcing a stay decision, thereby - bypassing the Appeal Board.
10 C. F.R. 5 2,764(f)(iv).
As a i
general matter, the Comission has inherent supervisory power over all pending adjudicatory proceedings which gives it the authority to step in at any point and consider any issue.
Public Service Co. of New Hampshire
't (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516-17 (1977)',
citing U.S.E.R.D. A. (Clinch River Breeder Reactor Plant) CLI-76-13, 4 NRC 67, 75-76' (1976).
10 CFR Part 2 provides that appeals are taken to the 1
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It is noted that many of the reasons the Intervenors set out for the motion are moot.
See Motion at 5-6.
The Licensing Board has issued.
LBP-89-33 elucidating its reasoning for authorizing issuance of a license after ALAB-924 and the various motions to reopen.
The Comission will. consider the gravity of substantive issues and whether they were resolved correctly below in its imediate effectiveness review under 10 C.F.R. 6 2.764(f)(2).
The Comission took consideration of all stay applications partly because of its contemporaneous consideration of the question certified in ALAB-922.
These and other matters will be looked at by the Comission in its imediate effectiveness and stay review.
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10 C.F.R. I 2.762(a).
The Appeal Board exercises appellate authority pursuant to a delecation from the Comission and is authorized l
to perform those appellate functions that would otherwise be exercised by
-the Comission subject to a Comission determination that it will consider
" major or novel questions of policy, law or procedure."
10 C.F.R. 56 2.785(a), (d).
Intervenors by their pleadings demonstrate that they believe major questions of policy, law and procedure are involved here.
Although 10 C.F.R. 9 2.788(f) provides that an application for stay of a Licensing Board decision is ' to be made to the Appeal Board initially, neither 10 C.F.R. 6 2.785 nor 6 2.788 is an abdication of the Comission's inherent supervisory authority preventing the Comission from acting in-i the stead of its surrogate Appeal Board.
Intervenors also complain that their motion to revoke license authorization U is being improperly treated as a stay application.
Motion at 9.
While Intervenors now claim that their motion to " revoke" i
licens'e authorization is separate and distinct from one to " stay" license issuance, they 'took an entirely different position when they filed their motion. _In that very motion they stated:
Intervenors move this Board for an order imediately vacating and revoking the license authorization set forth in LBP-88-32.
To the extent necessary to support such _ action, or in the alternative, Inter-venors hereby move that this Board bifurcate review of LBP-89-32, separating those portions of that decision that authorized license issuance, imediately review that portion and, pending such review, stay the effectiveness of that portion.
In support of this stay request Intervenors state.
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Intervenors' Motion to Vacate Those Portions of LBP-89-32 Authorizing Issuance of a Seabrook Operating License, November 13, 1989 (" Motion
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toVacate").
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Motion to Vacate at 6 (emphasis added). 4/
f Obviously, Intervenors were aware from the outset that the relief they requested from the Appeal 90ard could only be granted in the fom of
. hile Intervenors now seek an W
a stay of the effectiveness of LBP-89-32.
immediate declaration that the license authorization is void,- they give L
absolutely no explanation, and certainly none is apparent, of how the Licensing Board's license authorization could be imediately vacated and revoked under the ' Comission's regulations.
According to those regulations, the - Comission will upon receipt of the Licensing Board decision authorizing issuance of an operating license, other than a decision authorizing only fuel loading and low power (up to 5 percent of rated power) testing, review the matter on its own motion to determine whether to stay the effectiveness of the decision.
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As the Intervenors observe, (Motion at 2. foot-1 note 2) the Commission's immediate effectiveness review does not alter the initial-decision of the Licensing Board to authorize issuance of a license, which becomes a final agency decision after 45 dayr unless an appeal is taken.
10 C. F.R.
6 2.760(a).
Their request that it be l
immediately vacated, before an appeal is taken or the Comission conducts an immediate effectiveness review, is contrary to the regulations and
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Moreover, the Comission Order of November 16, 1989, did not solely consider the Motion to Vacate as a stay application.
The Commission
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only stated that the " motion will be decided by the Comission" and adopted the schedule set by the Appeal Board for responses to that motion "as well as any other applications for stay of LBP-89-32 which may hereafter be filed."
It further provided that other parties were to answer the Motion to Vacate as well as any stay requests.
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~7, inappropriate.
Intervenors will have. ample opportunity to argue the appropriateness of the legal and factual findings and conclusions reached by the Licensing Board on appeal.
In the meantime,. they may present to
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the Commission any reasons they believe the imediate effectiveness of the license authorization should be stayed.
Contrary to the suggestion of -the Intervenors (Motion at 10), the Comission, consistent with traditional stay motion practice, will conduct a review of the merits of the Licensing Board's decision -authorizing issuance of a license to the extent of determining whether Intervenors are likely to prevail on the merits.
Under 10 C.F.R. 5 2.764(f)(2)(1), the Comission.must. determine whether the immediate effectiveness of the
-license authorization should be stayed considering, inter alia, the gravity of the-substantive issues, the likelihood that they were wrongly resolved below, and any possible prejudice that would be caused by operation of the facility pending review. The Comission, under the terms of its Order of November 16, is examining all matters which the Appeal
-Board would have in determining whether to grant a stay.
See Order at 2.
Such an examination includes the consideration of whether the movant "has made a strong showing that it is likely to prevail on the merits,"
y irreparable injury to the movant, harm to other parties and "[w]here the public interest lies."
10 C.F.R. 5 2.788(e). El As for the certified
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question before the Comission, Intervenors have already presented their
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Intervenors have ample time to comment on those matters in light of the Licensing Board's explanatory memorandum given the extension of the coment period granted by the Comission in its Order of I
November 21, 1989.
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.w views.in o a brief filed-in accordance with the Commission Order of
~0ctober 13,1989.5/
While Intervenors. argue that their Motion to Vacate should not be
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decided according-to the legal standard applicable to a stay application (Motion at 10),- they provide no explanation of what standard should apply.
-However dissatisfied Intervenors may be with the showing they must make to obtain a stay, they do not have the option of submitting unauthorized o
i pleadings and claiming that they should be considered according to some unspecified but nonetheless " lower" legal standard. 7/ Similarly, as much y
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The substantive arguments contained in Intervenors' Motion are
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comments ~ on the Commission's immediate effectiveness review.
Never-
- theless, their allegation that the Licensing Board has acted in a manner " overtly hostile to Intervenors' hearing rights under the AEA" (Motion at 7) cannot be allowed to pass without comment. Contrary to the' position = taken by the Intervenors, the Licensing Board's L
application of the reopening standard in 10 C.F.R. 6 2.734 is L
entirely consistent with Mothers for Peace v. NRC,. 751 F.2d '1287, 1318 (D.C.
Cir.
198D.
That case particularly stated that Commission's-standards of timeliness, safety significance and materiality could be applied to contentions submitted after the time to file contentions had passed.
751 F.2d at 1318.
Indeed, the regulation involved was adopted after the Mothers for Peace case.
The_ Commission in adopting the regulation specifically stated it was acting 'in consonance with the court's opinion in that case.
Allegations of " overt hostility" or " bad faith" lack any basis in
. fact.
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Indeed, a motion to vacate as fashioned by the Intervenors would be L
judged according to a higher legal standard than a motion to stay
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immediate effectiveness.
In order to vacate a decision of a licensing board, one would at least have to show it is wrong, whereas the test for a stay is "[wlhether the moving party has made a strong t
it is likely to prevail on the merits."
10 C.F.R.
showing (e) hat (1).
The test to stay the immediate effectiveness of a 6 2.788 license authorization is, in part, "the likelihood that [a substan-tive issue]
has been incorrectly resolved below."
10 C.F.R.
L 62.764(f)(2)(1).
Thus the tests to vacate a decision would be more stringent than the one to stay a decision where only a likelihood of success need be shown.
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as Intervenors m&y prefer that their motion be considered by the Appeal Board, their assertion that the Commission will examine the merits of the substantive issues involved to a lesser extent than the Appeal. Board would (Motion at ' 11-12) is groundless.
No part of any merits review is 1
eliminated by the. Commission's action.
Plainly, the claim '.that the.
Commission has put Intervenors to a higher standard of proof or foreclosed the exercise of some procedural right by asserting its supervisory power should be rejected.
CONCLUSION Intervenors' Motion for Reconsideration should be denied.
l Respectfully submitted, l
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Lisa B.. Clark Counsel for NRC Staff Dated in Rockville, Maryland this 30th day of November, 1900 3
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-UNITED ETATES OF AMERICA N
NUCLEAR REGULATORY COMMISSION-89 Nov 30 PS:26 BEFORE THE COMMISSION In thelMatter of
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On 1 Docket Nos. 50-443 COLL 4 PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, e_t a_1.
Off-site Emergency Planning (Seabrook Station, Units l'and 2) 3
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CERTIFICATE OF SERVICE LI hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF. COMMISSION'S NOVEMBER 16 ORDER" in the above-captioned L
proceeding have; been served on the following by deposit in the United States -
p mail. - first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system or as' indicated by double-asterisks,-by express mail this 30th day of November 1989:
f ilvanW. Smith, Chairman (2)*
Thomas G. Dignan, Jr., Esq.**
Administrative Judge Robert K. Gad, III, Esq.
Atomic Safety and Licensing Board Ropes & Gray U.S. Nuclear Regulatory Comission One International Place Boston, MA 02110 Richard F. Cole
- Administrative Judge Geoffrey Huntington, Esq.**
Atomic Safety and Licensing Board Assistant Attorney General U.S.. Nuclear Regulatory Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH - 03301
- Kenneth A. McCollom**
Administrative Judge Mrs. Anne E. Goodman, Chairman 1107 West Knapp Street Board of Selectmen 1
Stillwater, OK 74075 13-15 Newmarket Road i
Durham, NH 03824 Philip Ahrens, Esq.
Judith H. Mizner, Esq, Assistant Attorney General 79 State Street L
Office of the Attorney General Newburyport, MA 01950 State House Station 4
' Augusta, ME 04333-Robert Carrigg, Chairman Board of Selectmen i
John Traficonte, 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 Town Hall - Friend Street Amesbury, MA 01913
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T Dia'ne Curran,' Esq.**
.Hamon, Curran & Tousley -
c 2001 S Street, NW Hon. Gordon J. Humphrey F
. Suite 430 United States Senate Washington. DC 20009 531 Hart Senate Office-Building i
Washington, DC-20510-Calvin Ae Canney i
Peter J. Matthews, Mayor City Hall.
City Hall 126 Daniel Street Portsmouth, NH 03801-Newburyport, MN 01950
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Allen Lampert Michael Santosuosso, Chairman Civil Defense. Director Board of Selectmen Town of Brentwood South Hampton, NH 03827 20 Franklin-E Exeter, NH'.03833 Ashod N. Amirian, Esq.
Town Counsel for Merrimac
, illiam Armstrong 145 South Main Street W
i Civil Defense Director P.O.-Box 38 Town of Exeter Bradford, MA -01835 4
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'10 Front Street.
-Exeter, NH 03833 Robert A. Backus, Esq.**
3 Backus, Meyer & Solomon L
1 Gary W.. Holmes, Esq.-
116 Lowell Street
- Holmes-& Ellis..
Manchester, NH 03106-47 Winnacunnet Road l
Hampton, NH 03842 l:
Paul McEachern, Esq.**
l-o DJ.;P.-Nadeau.
Shaines & McEachern
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' Board of. Selectmen' 25 Maplewood Avenue
'10 Central Street-P.O. Box 360 Rye, NH -03870-Portsmouth, NH 03801 9
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,c Barbara J. Saint Andre Esq.
R. Scott Hill-Whilton, Esq. Kopelman
& Paige, P.C.
Lagoulis, Clark Hill-Whilton
& McGuire 77 Franklin Street-79 State Street.
Boston, MA: 02110 Newburyport, MA 01950 Sandra Gavutis, Chainnan Board of Selectmen H. J. Flynn, Esq.
7 RFD#1, Box 1154 Assistant General Counsel Kensington, NH 03827=
Federal Emergency-Management Agency _
$C 'b472 Atomic Safety and Licensing Board Wa h n o
- Panel-(1)
U.S. Nuclear Regulatory Commission Atomic Safety.and' Licensing
' Washington, DC 20555 Appeal Panel (6)*
U.S.
Nuclear Regulatory. Comission
. 0ffice of the Secretary (16)*
Washington,-DC-20555 U.S. Nuclear. Regulatory Comission Washington, DC 20555 Attn: Docketing and Service Section h(/Q dt Lisa A. Clark Counsel for NRC Staff 5 '
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