ML19341C954
| ML19341C954 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/27/1981 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8103040602 | |
| Download: ML19341C954 (5) | |
Text
~
\\
BEFORE niE COLTISS80::
i N
j vs UMITED STATES OF AMERICA d r
B\\s Li 6
b, s%'.#
~
before the
>jce F3 O
gg at&
~~
w NUCLEAR REGULATORY COMMISSI i 6
N&
,5
%i Ig\\
s In the Matter of
)
)
PUBLIC SERVICE COM?ANY OF NEW
)
Docket Nos. 50 443 HAMPSEIRE, et al.
)
50-444
)
(Seabrook Station, Units 1 & 2)
)
)
-Vf k
N g
DOCKETED ANSWER OF PUBLIC SERVICE COMPANY OF usnc
~
NEW HAMPSHIRE TO NECN? MCIION FOR
~2 MAR 2jggj y 7
DIRECTED CERTIFICATION AND 9-
~~
REVERSAL OF APPEAL SOARI ORDER CF
[
J FEBRUARY 12, 1931 y
E-s STATEMENT OF THE CASE On February 12, 1941, the Appeal Board presiding over the sc-called " seismic r' mand" in the above-entitled proceeding issued a memorandum and order denying two motions to compel discovery filed by the New England Coalition on Nuclear Pollu-tion (NECNP) and allowing a motion for a protective order filed by Public Service Company of New Hampshire (?SCO).
On February 2h, 1961, NECNP filed a " Motion for Directed.'Certi-fication and Reversal of Appeal Board Order of February 12, 1931".
The motion is stated to be filed "[p]ursuant to 10 CFR 2.755(d)".
NECN? Motion at 1.
For each of the v-10us reasons set forth below, PSCO i
)50 says that the motion should be denied.
5 j
810 80 4 9 CatY).
Co
)
b ARGUMENT I.
The Motion is Specifically Disallowed by the Rules of Practice i
The NECNP motien is stated to be filed pursuant to 10 CFR.S 2.785(d) which provides, in material part, as follows:
an Atomic Safety and Licensing Appeal Board may, either in its discre-tion or on direction of the Commission, certify to the Commission for its deter-mination major or novel questions of policy law or procedure."
This language is similar to that found as part of the powers of the presiding officer in 10 CFR $ 2.718(1) which was inter-preted in the Seabrook proceeding by the Appeal Board to permit a party to seek Appeal 3 card interlocutory review of Licensing 3 card decisions by a motion or petition for directed certifica-tion.
Public Service Co. of Neu Hampshire (Seabrook Station, Units 1 & 2), ALA3-271, 1 NRC 473, 482-83 (1975).
Section 2.718(i) permits a presiding officer (i.e., on ASLB) to:
" Certify questions to the Commission for its determination, either in his discre-tion or on direction of the Cc= mission. "
However, unlike the Appeal Boards, the Conmission has opted for an absolute bar to *.he filing of =ctions for " directed certification" of int erlocutory Appeal Board rulings with 10.
In 10 CFR $ 2.786(b)(E), it is stated:
"Except as provided in this section and Section 2.788, no petition or other request for Commission review of a decision or action of an Atomic Safety and Licensing Appeal Board will be enter-tained."
_1_
s g
The instant request is orought neither under 10 CFR $ 2.78o nor 10 CFR_S 2.763.
In short, directed certification to the Commission from the Appeal Board does not exist.*
II. 'If the Commission Holds That " Directed Certification" is a Permissible
-Practice, the Motion Still Should be Denied When all is said and done, the rulin5s complained of are rulings with respect to ot ':ctions to discovery.
Directed
- This is consistent with ast Commission practice.
The old AEC never recogniced directet certification to the Cc= mission.
Duke Power Co. (Octnee Nuclear Staticn, Units 1, 2 & 3), 4 AEC 22 (Comm. 19o7).
Since the Appeal Board Decision in ALA3-271, the Commission has apparently adhered to the view that directed certification to it does not lie.
See Consumers Power Co.
(Midland Plants, Units 1 & 2), CLI-77-12, 5 NRC 725 (1977).
It is true that an Appeal Board, in passing, has stated,
"[a]nd of course licensee could have asked us -- or the Com-mission itself -- to take up the issue by ' certification'.
10 C.F.R. 5 2.785(d)".
Pacific Gas and Electric Co. (Diabic Canyon Nuclear Power Plant, Units 1 and 2), ALA3-592, 11 NRC 744, 754, reviewed, CLI-80-2h, 11 NRC 775 E980), citing "Public Service Company of Oklahoma (Black Fox Station, Units 1 & 21, ALAB-573, 10 NRC 775, 790 (1978), certificatien granted, CLI-80-3, 11 NRC 185 (February 20, 1980) (sic)".
To bagin with, the cited authority involved a situation where the Appeal Board certified a question; it was not a directed certification.
See Public Service Cenpany of Oklahoma (Black Fox Station, Units 1 and 2), CLI-co-o, 11 NRC 433 at n.1 (1980).
In addition, the certification was accepted in an unpublished order, not in CLI-80-3, 11 NRC 185.
(obviously,
the Appeal Board had anticipated a publication which the Ccamis-sion did not make.)
Of course, unpublished orders should have no precedential effect in any event.
ALAB-592, supra at 745.
4 1
l 1 -
i
~-
_,I
9-Y,
q
\\
certification is not granted to review such rulings.
Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 &
2), ALAB-318, 3 NRC 186 (1976); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-300, 2 NRC 752, 769 (1975).
Thus, if the Commission elects to create a right of directed certification, similar to that used by the Appeal Boards, these discovery rulings simply do not meet the necessary stan-dard for invocation of such a remedy.
III.
In any Event the Rulings Were Clearly Correct The logic of the Appeal Board in'the ruling here challenged is unassailable.
The purpose of this hearing insofar as Dr. Chinnery is concerned is to see if he can (on a third try) make his case.
The hearing is not for the purpose of permitting challenges to the validity of any other theory.
No direct testimony has been filed on such matters.
As the Appeal Board noted, the NECNP " weighing" activities might be a proper subject of some future proceeding.
It is not what this Commission ordered.
Respectfully submitted, Themas G. Dignan Jr.
Tnomas G.
Dignan, Jr.
Ropes & Gray Attorneys for Public Service Company of New Hampshire i
t
CeRm;;.rCAm; 0; c; VTr_e A
1_
_n
-v I, Thomas G. Dignan, Jr., one of the attorneys for the applicants herein, hereby certify that en February 27, 1931, I made service of the within document by mailing copies thereof, postage prepaid, first class or airmail, to:
Alan S. Rosenthal, Chairman Ellyn R. Weiss, Esquire Atomic Safety and Licensing Har cn & Weiss Appeal Board Saite 50c U.S. Nuclear Regulatcry Cc =ission 1725 I Street, N.W.
Washing:cn, D.C.
20555 washing:cn, D.C.
20006 Dr. John H. Buck Robert A. Backus, Esquire Atomic Safety and Licensing O'Neill Backus Spielman Appeal Board 115 Lewell Street U.S. Nuclear Regula: cry Cc==ission Manchester, New Hampshire C3105 Washington, D.C.
20555 Stuar: K. Becker, Esquire Dr. W. Reed Johnson Atomic Safety and Licensing Maxine
. lipeles, Esquire Assistan: A :c neys General Appeal Scard Envi onmental Protection Division U.S. Nuclear Regula: cry Cc==issien Department of the A :crney General Washington, D.C.
20555 One Ashburton Place, 19th Flocr Ms. Eli:abeth H. Weinhold 3cston, Massachusetts 02103 3 Godfrey Avenue Roy P.
Lessy, Jr., Esquire
.=. _=.~..,,. c.,. " e w.". =
s.k..d - a.
0.1. A t. 2 0.". _' c e..'
..w.a. _xaa"..4.a.
me g _'
i D,. - a. n.. -
a.
n.e._4c e.c.w-e n.a - c a..a.s n -
".9
.Nua'a__=~
t' v
c.s
.S.a. 3" - a. r. a v.. v w^ m....'s.e.'.
^
.e Ecard Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Victer Gilinsky, Cc==issicne-U.S. Nuclear Regulatory Cc==ission O."..' a. a. ^.a.
n.. o n a..v G a..a. a.
_= _'
Washin~;cn D.C.
205::
e n -
200 c: ate nouse a,nnex Concord, New Hampshire 03301 leonard Sickwit, Esquire Office of the General Counsel John Ahearne, Chairman U.S.
4 Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Peter A. Bradford, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
Thomas G.
Dirnan, Jr.
l Thomas G.
Cignan, Jr.
1 m
-