ML20006A308

Intervenors Motion to Enjoin Board from Interference W/Court Appeal.* Requests to Enjoin Board from Conducting Further Proceedings Re ALAB-924 or from Unlawfully Interfering W/ Merits of Appeal of License.W/Certificate of Svc

ML20006A308
Person / Time
Site:	Seabrook
Issue date:	01/19/1990
From:	Backus R, Brock M, Curran D BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#190-9709 ALAB-924, OL, NUDOCS 9001260105
Download: ML20006A308 (11)

Text

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UNITED STATES OF AMERICA _ _

NUCLEAR REGUIATORY- COMMISSION '90 JAN 22 P442

' ATOMIC SAFETY AND LICENSING APPEAL BOARD 0FFICE OF SECRETARY Before Administrative Judges: I'UU'Y}((;f du.vir[

'j G. Paul'Bollwerk, III, Chairman.

Alan S. Rosenthal Howard A. Wilber i 4

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

) 50-444-OL PUBLIC SERVICE COMPANY ) (Emergency Planning Issues) ,

OF NEW HAMPSHIRE, ET AL. )

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(Seabrook Station, Units 1 and 2) ) Janusry 19, 1990

)

i-INTERVENORS' MOTION TO ENJOIN LICENSING p

BOARD FROM INTERFERENCE'WITH COURT APPEAL The. Massachusetts Attorney General, Seacoast Anti-Pollution League, and New England Coalition on Nuclear Pollution

("Intervenors") hereby move the Appeal Board, pursuant to its supervisory. powers, to enjoin the SeabrookrLicensing Board from conducting further proceedings concerning ALAB-924, or from ~

otherwise unlawfully interfering with the merits of Intervenors' appeal of the authorization for a full power license for Seabrook Station, now pending before the Court of i Appeals. .In_ support of this motion, Intervenors state:

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_1) .On November 9, 1989 the Licensing Board issued-its b initial ~ decision, and authorized a full' power license for Seabrook Station. LBP-89-32.

2)' On December 4, 1989, Intervenors filed a Petition for Review of LBP-89-32 with the Court of Appeals for the District of Columbia. The Petition is still'pending. Intervenors seek a Court determination, inter ella, that the Licensing Board directly disobeyed the mandate of ALAB-924, that the Board's

' license authorization is illegal since the Board's approval of the-NHRERP, a necessary predicate for licensing, previously had been reversed and remanded'by the Appeal Board, that the Licensing Board lacked jurisdiction to authorize a license.

under these circumstances, and that Intervenors' orelicensina hearing rights regarding the remanded issues had been denied.

3), Subsequently the Commission has attempted, as yet unsuccessfully, to have the Petition dismissed.1/ Therefore, as a' matter of law, the NRC is bound.to give effect to the pending Fetition, and to ensure that this agency, absent express leave of the Court, refrains from interference with the-merits of Intervenors' appeal.

Once a petition to review has been filed in court, the FCC2/

1/ RESPONDENTS' MOTION TO DISMISS PETITION FOR REVIEW (Dec. 8, 1989).

2/ Like the NRC, final orders of the FCC are subject to judicial review pursuant to the Hobbs Act. 28 USC 52342.

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!;& I has no authoritysto conduct further proceedings without the Court 's: approval . - The reviewing court must order a remand

if-there is to be provision for further administrative consideration.1/ o l

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4) on January 11, 1990, the Licensing' Board issued a j N memorandum and' order which provided:

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The purpose of this memorandum and order is to provide interested parties an opportunity to advise the Board on I how to proceed in accordance with the directives of ALAB-924 and'how they propose to participate in the resolution of the remanded issues.A/ i 2/ Greater Boston Television Coro. v. FCC, 463 F2d 268, 283_ i (DC Cir. 1971), cert DAD 406 US 950, citing 28 U.S.C. 52347(c), '

o which provides:

(c) If a party to a proceeding to review applies to the L

court of appeals in which the proceeding is pending for i leave to adduce additional evidence and shows to the '

satisfaction of the court that --  !

e (1) the additional evidence is material;'and (2) there were reasonable grounds for failure to- .

adduce.the evidence before the agency; the court may l order the additional evidence and any counter evidence P the opposite party desires to offer to be taken by the agency. The agency may modify'its findings of fact, L or make new findings, by reason of the additional L

evidence so taken, and may modify or set-aside its order, and shall file in the court the additional evidence, the modified findings or new findings, and the modified order or.the order setting aside the original order.

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Subsequent-to the filing of the December 4 Petition, no party has requested leave of the Court to adduce additional' evidence before the agency. Nor are there " reasonable' grounds" to warrant further evidence on-the record unless and until the license is revoked, and this fundamental illegality cured. Egg l also Anchor Line Limited v. FMC, 299 Fed. 124 (D.C. Cir. -

1962). (Once Petition for Review is filed, court does not

• ' condone failure of agency to seek leave of court, prior to conducting further proceedings.

1/ The memorandum and order is attached as Exhibit 1 to this motion.

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kf b; l$ l In a now. familiar-pattern,-the Licensing Board is acting beyond'its jurisdiction in a belated and unlawful attempt to-

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alter the' record on review before the Court of Appeals. Having l l

p committed this' agency to final agency action by authorizing a; l l

full power license, the Licensing Board-is bound to the record, I however inadequate, that formed the basis for its decision..

Intervenors' are entitled to . Court review of that same record, which will demonstrate beyond peradventure that the Licensing Board violated the mandate of ALAB-924 and denied Intervenors' rights under the AEA to a prelicense hearing on-issues material to that license.E/

l 5/ The Commission previously contemplated that 10 CFR 5 50. 47 (c) (1) might cure this illegality. Egg RESPONSE TO l EMERGENCY PETITION FOR MANDATORY RELIEF AND TO PETITIONERS'_ I MOTION FOR CONSOLIDATION AND EXPEDITION at 15-16. Presumably, 1since the Licensing Board has now rejected three times 50.47(c) (1)'. as a basis ' for its _ licensing action, the Commission will reasonably conclude (c) (1) is irrelevant to this ,

proceeding.< Egg'Intervenors' SUPPLEMENTAL BRIEF IN SUPPORT OF

' THEIR NOVEMBER 13'AND DECEMBER 1, 1989 MOTIONS FOR MANDATORY l RELIEF att p3 n.2. The lack of a (c) (1) -fix for the Licensing  ;

Board's errant ways was initially recognized by the Staff, NRC l STAFF RESPONSE TO INTERVENORS' REQUEST FOR HEARING ON THE-APPLICATION OF 10 CFR 550.57[ sic] (c) (1) TO THE NHRERP (Nov.

30, 1989) at- p2 -("The Licensing Board did not apply 50.47(c) (1) l to the remanded issues."), l 1

and by the Applicants.

The Appeal Board has directed the holding of further ]

proceedings which could result in the closure of the two year " graded exercise window" for Seabrook, which opened in June.of 1988. Only Commission review can avoid the

-" endless loop of litigation." APPLICANTS' PETITION FOR  :

~ REVIEW OF ALAB-924 (Nov. 10, 1989) at 10. l Obviously the Applicants recognized (before their receipt of  ;

LBP-89-32 on November 13) that the deficiencies in ALAB-924 '

were sianificant for the plant in question.

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(W)e:as a reviewing court are required-to base our decisihn on the record in the case, 133 5 USC 6706 (1970), not on

the~ unstated considerations of Commission members ~or on 1 reasoning:or. argument advanced for the first. time on review. The Supreme Court has made clear that where, as here,1there was-a contemporaneous explanation given'for agency action,-the validity of that action must " stand or-fall on the propriety of that finding, by the appropriate standard of review. judged, If thatoffinding course,is not sustainable on the administrative record made, then the l

. matter (must be) remanded . . . for.further Econsideration."s/

'5) -Since further proceedings by the Licensing Board involving ALAB-924 have not been authorized by a Court,2/ and have not been agreed to by all parties,II the Licensing Board f/ U.S. Lines v. FMC, 584 F2d 519, 532 (DC Cir. 1978) citing Camo v. Pitts, 411-US 138 (1978).

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' '1/ Intervenors' Motion to Revoke the license authorization is before the-Commission, and, as approved by the Court, represents a "pending administrative proceeding () or further '

agency action which might render the case moot and judicial review completely unnecessary." Commonwealth of Massachusetts, Docket-No. 89-1770, Order.(Jan. 3, 1990). By contrast, there is nothing pending before the Licensing Board concerning L

ALAB-924, or'otherwise, which could moot Intervenors appeal or cure the Board's illegal license authorization. Further proceedings before the Licensing Board would only confuse and distort the record on. review to.the Court of Appeals and interfere with-the appellate process.

'R/ The Supreme Court has approved further agency action, notwithstanding the pendency of court appeal, to the extent that that action does not interfere with proceedings in the

Court of Appeals and where "(aill oarties concurred in the l Commission's decision to reopen the proceedings and to hold judicial review in. abeyance." US v. Benmar Trans & Leasina

. Corp.,.444 US 4, 5 (1979) (emphasis supplied); 331 also, Public L Service Comoany of-Indiana (Marble Hill Nuclear Generating 3 Station, Units'1 and 2), ALAB-493, 8 NRC 253, 258-259 (1978).

l-In~this case, the Licensing Board's alteration of the record on E review can only interfere with the Court's review of the I

decisional record authorizing licensing, see n. 6, supra, and

'is opposed by Intervenors.

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. h-b' "mu^st be enjoined from'the further action' contemplated in its January 11 memorandum and order. '

6) Intervenors request that the Appeal Board rule-on this

' motion on or before January 26, 1990.M F

Respectfully. submitted, l SEACOAST ANTI-POLLUTION COMMONWEALTH OF MASSACHUSETTS LEAGUE JAMES M. SHANNON, ATTORNEY GENERAL i Robert A.-Backus, Esquire N\ Matthew T. Brock Backus,-Meyer & Solomon Assistant Attorney General.

116 Lowel1~ Street Nuclear Safety Unit P.O. Box 516 Department of the Attorney General Manchester, NH 03106 One Ashburton Place (603) 668-7272 Boston, MA 02108-1698 (617) 727-2200 NEW ENGLAND COALITION ON NUCLEAR POLLUTION U/b c LJR / W M Diane Curran,_ Esquire Harmon, Curran &-Tousley 2001 S Street, N.W.

Suite 430

Washington,-DC 20009-1125

-(202)_328-3500

- DATED: January 19, 1989

~2/ By its Memorandum and Order, the Licensing Board has

- directed all parties to file responses concerning further 1

- proceedings on-ALAB-924, on or before February 1, 1990. I l

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_ UNITED: STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 10 JAN 11 al:24 ATOMIC SAFETY AND LICENSING BOARD '

Before Administrative Judges:

f0C Eif BRANCH G A shvihrf' Ivan W. Smith, Chairman Dr. Richard F. Cole '

Dr. Kenneth A.:McCollom SERVED JAN i11990 In'the Matter of PUBLIC SERVICE COMPANY OF Docket Nos. 50-443-OL NEW HAMPSHIRE, at al. 50-444-OL L

L (Seabrook. Station, (Offsite Emergency Units 1 and 2) Planning)

. ASLBP No. 82-471-02-OL January 11,_1990 MEMORANDUM AND ORDER

,' (Regarding Issues Remanded in ALAB-924) l- In ALAB-924, issued November 7, 1989, the Appeal Board remanded four issues on appeal from the Partial Initial Decision on the New Hampshire Radiological Emergency.

Response Plan1 to this Board for further consideration.

The purpose of.this memorandum and order is to provide l- to interested parties an opportunity to advise the Board on

'how to proceed in accordance with the directives of ALAB-L 924 and how they propose to participate.in the resolution of the remanded issues.

I 9p75f/fl~ W +:o LBP-88-32, 28 NRC 667 (1988). s gg1 , ,4ggQ

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EXHIBIT 1

1 l Parties shall file their comments and advice, not to exceed 20 pages, no later than February 1, 1990. Responses

'to comments may not exceed ten pages and shall be filed no later.than ten days following the service of comments.  !

.In addition, the Applicants shall confirm that they j l

have honored their commitment respecting transportation. i needs for certain special facilities in Ryo and Exeter,.New Hampshire no-later than February 1, 1990. See ALAB-924, slip op. n. 72 at 70-71; LBP-89-33, slip op. n. I at 2.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

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' 2////9l Ivan W. Smith, Chairman o

. ADMINISTRATIVE LAW JUDGE

=Bethesda,: Maryland l

-January-11, 1990 .

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4 L:0CKETED UNITED STATES OF AMERICA USNRC-NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY'AND LICENSING APPEAL BOARD T0 de 22 P4 43 Before Administrative Judges:

OFFICE 0F SECRETARY G. Paul'Bollwerk, Chairman 00CKEllNG & SERVICE BRANCH '

Alan S. Rosenthal .

j Howard A. Wilber '

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)

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

) 50-444-OL j

-PUBLIC SERVICE COMPANY )  !

-OF.NEW HAMPSHIRE, ET AL. )  ;

)

(Seabrook Station, Units 1 and 2) i

) January 19, 1990 t

) I i'

CERTIFICATE.0F SERVICE I, Matthew T-Brock, hereby certify that on Janaury 19, 1990,

-I made service of the' enclosed INTERVENORS' MOTION TO: ENJOIN LICENSING BOARD FROM INTERFERENCE WITH COURT APPEAL via Federal Express as indicated by (*), and by first class mail to:

Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St.

L :U.S. Nuclear Regulatory Commission Stillwater, OK 74075 .'

j East: West Towers Building 4350 East West" Highway Bethesda, MD 20814 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 l L

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-4350 East West Highway 4350 East West Highway Bethesda,.MD 20814 Bethesda, MD 20814 ]

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• Docketing and' Service

• Thomas G..Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 l

One International' Place j Boston, MA 02110 l l

• Mitzi A. Young,1Esq. Phillip.Ahrens, Esq. I i

Edwin J.-Reis, Esq.. Assistant Attorney General l U.S. . Nuclear Regulatory Commission Department of the Attorney General '

Office of the General Counsel Augusta, ME 04333 11555 Rockville Pike, 15th Floor 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 Agency 500 C Street, S.W.

.e 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- Diane Curran, Esq.

Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430

.Portsmouth, NH 03801 2001 S Street, N.W.

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

Kopelman & Paige, P.C. 79 State Street 77' Franklin Street Second Floor Boston, JUL 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. Amirian,.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 Concord, NH 03301 Office of the Attorney General 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301

'6. ,

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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 Jack Dolan Atomic Safety & Licensing Federal Emergency Management Agency.

Appeal Board Region i U.S. Nuclear Regulatory Commission J.W. McCormack Post Office &

Washington, D.C. 10555 . Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director N.H. Office of Emergency Management

. State House Office Park South 107 Pleasant Street Concord, NH 03301  ;

Respectfully submitted, i JAMES M. SHANNON ATTORNEY GENERAL Matthew T. Brock

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Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: January 19, 1990 L L i.

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