ML20006C501

Response of Commonwealth of Ma Atty General & Necnp to Board Order of 900111.* Board Should Conduct Hearings at Point When Board Could Proceed in Accordance w/ALAB-924 & Provide Prelicensing Hearings.Certificate of Svc Encl

ML20006C501
Person / Time
Site:	Seabrook
Issue date:	02/01/1990
From:	Curran D, Traficonte J HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#190-9784 ALAB-924, OL, NUDOCS 9002080137
Download: ML20006C501 (9)

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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION % FEB -2 Pl2 :19 ATOMIC SAFETY AND LICENSING Bo g pgg gp ggg 00CKL T UG '. M avttt Before the Administrative Judgest !AAWe Ivan W. Smith, Chairman-Dr. Richard F. Cole Kenneth A. McCollom

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) February 1, 1990

_)

RESPONSE OF THE MASSACHUSETTS ATTORNEY GENERAL AND THE NEW ENGLAND COALITION ON NUCLEAR POLLUTION TO BOARD ORDER OF JANUARY 11. 1990 The Massachusetts Attorney General (" Mass AG") and the New England Coalition on Nuclear Pollution (the "Intervenors") submit this response to the Board's January 11, 1990 Memorandum and Order Regarding Issues Remanded in ALAB-924 (the " Order"). In the Order the Board provided " interested parties" an opportunity to advise the Board on how to proceed in accordance with the directives of ALAB-924 and how they. propose to participate in the resolution of the remanded issues.

The Intervenors advise as follows:

1. This Board acted unlawfully and'beyond its jurisdiction on November 9 in authorizing a Seabrook license in L

9002080137 900201 PDR ADOCK 05000443 0 PDH b

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the face of ALAB-924.1/ Not only did the Board openly and directly. contradict the exoress holdina of ALAB-924 as to the possibility of approving the NHRERP in its present posture,AI' the Board obviously denied Intervenors any possibility of a orelicensina hearing on-the remanded issues thereby violating the Atomic Energy Act.. This latter error was based on this.

Board's apparent belief that orier to licensina, it is free to determine whether any issues still to be-resolved are "significant" and if they are not then to defer resolution t

L 1/ Attached as Exhibit 1 is, the Intervenors' December 1 Motion to Revoke this Board's November 9 licensing action. A; detailed analysis of the various infirmities in this Board's action-is 1 set forth at 17-35. 't 2/ The Appeal Board held that the NHRERP was D21 an approvable- I plan without sheltering detail a nd by this statement it held that no reasonab4e assurance finding could be made.- ALAB-924 at 68, n. 194 tr.d cases cited therein. Although on November 20, this Board noted the Appeal-Board's ruling 1 (LBP-89-? at 4 n.3), this Board'also asserted in flat

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contradiction to this ruling that ALAb-9241 did D21' impact on  !

the " requisite findings of reasanable assurance of public safety." LBP-89-33 at 4. This is the' legal 1 equivalent of 2 + 2 = 5. Notwithstanding all the arguments and Dost facto  !

i justifications made for this Board's actions by the Board, by -i the Staff and the Applicants tolthe-commission and by the  !

Commission to the Court of Appeals, Dot one word of exclaDation '

has been offered as to how this lower Board could find

" reasonable assurance" in the absence of sheltering detail _and. l approve the NHRERP on November 9 when its superior' appellate Board held that the NHRERP could not be acoroved without such ] '

detail on November 7. 'In this posture, it is difficult literally to even read this Board's January 11 Order.regarding  !

this Board's professed interest'in proceeding Hin accordance j with the directives of ALAB-924." Order at 1. The only way. 1 for this Board to proceed in accordance with that decision is to revoke by and and vacate its November 9 action law. and to otherwise be guided act in accordance with i 4

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i (including resolution by hearing when necessary)-until after 1' licensing. This procedure is: mani festly unlawful and, indeed, I is indistinguishable from the "no significant hazards" -

! determination set out at 10 CFR 550.91 which is applicable only )

to license amendmente but not to licenses. In these .

L circumstances, Intervenors advise that the Board revoke and j vacate its November 9 action so that it can proceed "in  !

accordance with the directives of ALAB-924." Order at 1.

2. As this Board is aware, jurisdiction over its unlawful.

licensing action has passed to the Court of Appeals. .-In response to Intervenors' Emergency Petition for Mandatory.

Relief seeking judicial revocation of'the November 9-licensing-action, the Commission represented that it would decide similar Intervenor motions.for revocation on the merits. In response, the Co'urt on January 4, 1990 denied Intervenors' mandamus l;

request expressly. noting the Commission's representation.

Intervenors expect the Commission will grant those motions thereby. terminating its immediate effectiveness review and returning the licensing proceeding to the status cuo ante -

November 9, 1989. In the event the Commission denies this relief, Intervencrs expect.the '!

Court to strike down this .

Board's patently unlawful action.

In any event, this Board is without jurisdiction at this 1 iuncture to proceed, for example, with post-licensing hearings on the remanded issues. One major component of the legal error-i committed by this Board on November 9 concerns the denial of prelicensing hearing rights and this error.is now before the Court of Appeals on the merits. Were this Board to now proceed l

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J with hearings on the remanded issues, the fact that these hearings were held (or were laing. held) might be cited by the  !

Commission to the Court in redponse to Intervenors' arguments that such hearings were unlawfully denied orelicensina. The Commission might well argue that such post-licensing-hearings i (although obviously evidence that_this Board erred in issuing a. j license on November 9) n;oot the Intervenors' claim of error.

Thus, the merits of Intervenors' appeal to the Court would be 2 adversely affected. Indeed, through'such an inverted-procedure, the Commission and its licensing boards could 1 routinely deny prelicensing hearing rights and:then while appeal was pending_ conduct all necessary proceedings thereby potentially mooting appeal'. Obviously,.such a procedure might permit this Board's November 9. errors to escape review and-reversal.

t Furthermore, the appropriateness of the licensing action taken on November 9 in light of the posture of the remanded issues at that time is the heart of Intervenors' appeal of that i action before the Court. For example, as discussed-above, this  ;

Board made a " reasonable assurance" finding regarding New- -

Hampshire's plan in the absence of any sheltering detail being in place when the Appeal Board had held that the'NHRERP could-not be approved in that posture. This error is now before the I Court. It is simply not possible now for this Board to proceed-to-develop a record on sheltering detail after the fact thereby e permitting the Commission to argue this cost facto cure of the Board's legal error before the Court.

As the Court-has-stated:-

e Once a petition to review has been filed-in~ court, the FCC has no authority to 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.

Greater Boston Television Corp. v. FCC, 463 F2d 268, 283 (D.C.

Cir. 1971). Attached as Exhibit 2 is the Intervenors' January 19 Motion to Enjoin this Board from interfering with the review of its November 9 action now before the Court.

Rather than repeat in detail the arguments set out in this pleading, the Intervenors simply incorporate the: reasons. set out there as further grounds for their claim that this Board-has no authority to proceed in such a fashion so as to adversely affect the merits of Intervenors' appeal now pending.

3.

Notwithstanding the foregoing and in order to protecta I

i their rights to participate in further' proceedings if and when j l this Board is again free to proceed,EI the Intervenors  !

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reference the detailed analyses of the four remandedfissues' set '

o- out at 35-62 of Exhibit 1. These analyses discuss in detail ALAB-924, this Board's November 20 explanation and the record -i i

on the NHRERP. The conclusions reached are as follows:-

A. New Hampshire teachers:' Evidentiary submissions on the question whether New Hampshire teachers are ordinarily expected to perform certain services.are necessary. i' 2/ Intervenors are in receipt of Applicants' fatuous-January R 26 Motion to Dismiss Abandoned Remand Issues and will_ timely file an opposition thereto. The Mass AG notes here, however, that after ALAB-924 issued he expressly claimed-his right as-an l interested state to participate' fully in all remanded issues. -!

Egg Request of Intervenors for.Prehearing Conference in Response to ALAB-924, dated November 9, 1989 and served by telefax on that date at 3 n.1.

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'Q B. Special Need S'urvey: The orelicensina hearing now denied Intervenors twice must be held.

C. ALS and ETEs for special populations: Planning omissions must be corrected first. Special facility.ETEs'must be submitted and then their adequacy as reliable and useable estimates for the various facilities must be evaluated and tested by the hearing process.

D.. Beach Sheltering: Planning omissions must)be-I corrected first. .Then the adequacy of the beach sheltering procedures must be litigated by the parties.

At the point and oniv at the noint at which this Board -

could preaeed to act in accordance with' ALAB-924. and provide -

the orelicensing. hearings to which Intervenors were entitled -

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without interfering with the. appeal ofuthe November'9 licensing oction,-should the-Board conduct-those hearings as set'out 1 above. Thus, until the November 9 license authorization 11 revoked or ucheld on the merits on amoeal, no further Board l' action is appropriate.

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.. i Respectfully submitted, j L

COMMONWEALTH OF MASSACHUSETTS. '

NEW ENGLAND COALITION ON -JAMES M..-SHANNON il i

NUCLEAR POWER ~ ATTORNEY GENERAL a

Alt. -

Diane curran,.Esq.

4 [F ' co- D q$n Traficdnte

' Harmon, Curran, & Towsley Mief, Nuclear Safety Unit

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Suite 430 .

One Ashburton Place 2001-S Street, N.W. ~

Boston, MA 02108 Washington, DC 20008 (617) 727-2200-Dated: February 1, 1990 5

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r UNITED STATES OF AMERICA'- ghC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 90 FEB -2 Pl2 :20 Before the Administrative Judges:

QUICE OF SECRETARY Ivan W. Smith, Chairman. uGCKL Tfgfgii'VICf:

Dr. Richard F. Cole Kenneth A. McCollom

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

)

(Seabrook' Station,-Units 1 and 2) ) February 1, 1990

')

CERTIFICATE OF SERVICE I, John Traficonte, hereby certify thut on February.1, 19 9 0 ~, I made service of'the within RESPONSE OF THE MASSACHUSETTS! ATTORNEY GENERAL AND THE NEW ENGLAND COALITION -ON- NUCLEAR POLLUTION TO ~ BOAR ORDER OF JANUARY 11,-19901/

by Federal = Express as indicated by (*)'

and by first class mail to:

• Ivan W. Smith, Chairman i Atomic Safety-& Licensing Board *Kenneth A.-McCollom '

U.S. Nuclear Regulatory 1107 W.-'Knapp St.

Stillwater, OK 74075 Commission East West Towers Building

• Docketing and Service 4350 East West Highway U.S. Nuclear Regulatory l Bethesda, MD 20814 i

' Commission Washington, DC. 20555

• Dr. Richard F. Cole Paul McEachern, Esq.

1 Atomic Safety & Licensing Board Shaines & McEachern U.S. Nuclear Regulatory Commission 25'Maplewood-Avenue East West Towers Building P. O. . Box 360 4350 East West = Highway Portsmouth, NH 03801-Bethesda, MD 20814 L/

Exhibits to the above referenced pleading are already a i part of the record and have previously been furnished to all parties.

For'the convenience of the judges, they are being included with this new document. 1 1

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• Robert R. Pierce, Esq.

• Thomas G. Dignan, Jr., Esq.

Atomic Safety & Licensing Board Katherine Selleck, Esq.  ;

U.S. Nuclear Regulatory Commission Ropes & Gray East West Towers Building One . International Place 4350 East West Highway Boston, MA 02110 Bethesda, MD 20814 i

H. Joseph Flynn, Esq. *Mitzi A. Young, Esq.

i Assistant General Counsel Edwin J. Reis, Esq.

Office of General Counsel U.S. Nuclear Regulatory Federal Emergency Management Commission Agency 500.C Street, S.W. Office of the General Counsel 15th Floor Washington, DC 20472 11555 Rockville Pike i, Rockville, MD 20852 Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street '

Commission P.O. Box 516 Washington, DC 20555 Manchester, NH '03106 I

Atomic Safety & Licensing Board Jane Doughty U.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League Washington, DC 20555 5 Market Street .

Portsmouth, NH 03801 Charles P. Graham, Esq. Barbara St. Andre, Esq.

Murphy & Graham Kopelman &,Paige, P.C.

33 Low Street 77 Franklin Street j Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.

79 State Street Lagoulis, Hill-Whilton 2nd Floor  ;

L Newburyport, MA & Rotondi i

01950 79 State Street Newburyport, MA 01950 Dianne Curran, Esq. Ashod N. Amirian, Esq.

Harmon, Curran, & Towsley 145 South Main Street Suite 430 P.O. Box 38 i

2001 S Street, N.W. Bradford, MA l Washington, DC 01835 20008 l l

Senator Gordon J. Humphrey Senator Gordon J. Humphrey-U.S. Senate l Washington, DC One Eagle Square, Suite 507 1 20510 Concord, NH- 03301 (Attn: Tom Burack) (Attn: Herb Boynton) 1 l

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John P. Arnold, Attorney General Phillip Ahrens, Esq.

office of the Attorney General -Assistant Attorney General j

25' Capitol Street Dopartment of the Attorney Concord, NH 03301 j General  ;

Augusta, ME 04333 l Jack Dolan George Iverson,- Director 4 Federal Emergency Management N.H. Office of Emergency Agency .

i Management '

Region 1 .

J.W. McCormack Post Office &

State House Office Park South 107 Pleasant Street Courthouse Building, Room 442 Concord, NH 03301 Boston, MA 02109 .

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COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL tW hn Trafiednte .

. sistant Attorney General Chief, Nuclear Safety Unit i

Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: February 1, 1990

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