ML20006D343

Intervenors Opposition to Applicant 900126 Motion to Dismiss Abandoned Remand Issues.* Motion Should Be Denied Due to ASLB 900111 Order Providing No Basis for Motion.Certificate of Svc Encl

ML20006D343
Person / Time
Site:	Seabrook
Issue date:	02/07/1990
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-#190-9811 ALAB-924, LBP-88-32, LBP-89-32, LBP-89-33, OL, NUDOCS 9002130041
Download: ML20006D343 (9)

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DOCKETED USNRC +

UNITED STATES'OF AMERICA NUCLEAR REGULATORY COMMISSION 10 F&t-B P4 :17 '

' ATOMIC SAFETY .\ND LICENSING BOARD ,

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'I Before the Administrative Judges:  :

BEAHCH Ivan W. Smith, Chairman Dr.-Richard F. Cole .<

Kenneth A. McCollom i

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

) 50-444-OL PUBLIC SERVICE COMPANY ) ,

L OF NEW HAMPSHIRE, EI AL. )  ;

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(Seabrook Station, Units 1 and 2) ) February 7, 1990 1

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c- INTERVENORS' OPPOSITION TO APPLICANTS' JANUARY 26 MOTION TO a DISMISS ABANDONED REMAND ISSUES The Massachusetts Attorney General (" Mass AG")'and the New England Coalition on Nuclear Pollution '("NECNP")- (the +

"Intervenors") file-this opposition to Applicants' January 26-L Motion to Dismiss-Abandoned Remand Issues. That motion should

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be denied for the reasons.that follow.

A. This Board's January 11, 1990 Order 1/ Provides-No Basis for this Motion

1. The Board's Order was precatory and not mandatory. It provided an opportunity to advise the Board'but did not require '

1/ The Intervenors do not repeat here what they have already ^

argued in their February 1, 1990 Response to the Order concerning this Board's lack of jurisdiction to proceed with the remanded' issues. Obviously, this jurisdictional failing also prevents this Board from granting the Applicants' motion in any event.

9002130041 900207 PDR ADOCK05000gg3 35v3

L E or command thatlSAPL (or anyone'else) make use of this f opportunity.

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2. Similarly, the order said nothing about the

-possibility that a substantive failure to respond-with advice2 / could have the legal effect of an= abandonment or withdrawal.-

3. Significantly, the Board's Order clearly anticipated-(for good and sound reasons as discussed infra)-that interested carties would advise the Board as to the remanded issues. j E 4 Thus, nothing about the order would support the notion that any.

one party like SAPL by its-response (or failure to l

substantively respond) could unilaterally withdraw or abandon i

J the remanded issues.. Indeed, Intervenors did file a timely ,

l' response in'accordance with the terms of the order which ran to all remanded issues.

h B. Other Intervenors had already adopted the remanded issues before January 19, 1990.

Assuming arauendo that SAPL withdrew or abandoned certain ,

' remanded issues on January 19, 1990, this is of no moment '

because other Intervenors had already adopted these issues and had (and have) taken all necessary steps to secure their rights ,

to' participate in their resolution.

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, 2/ Intervenors do not repeat but simply adopt SAPL's arguments L made in. opposition regarding the intent or meaning of its L January 19, 1990 letter.

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I i l.- _At the point at which the Intervenors filed their

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briefs on appeal of LBP-88-32 (March 1989) each Intervenor had

'the~right to' appeal on all issues in the proceeding. Egg 54 Fed. Reg. 33168,-33177 (August 11, 1989). The Appeal Board in review of LBP-88-32 expressly ordered that the various

'intervenors DQt duplicate arguments-in their briefs. Thus, the Mass AG and NECNP were just as much seeking appeal on the issues briefed or argued by SAPL to the Appeal' Board as SAPL

-was. Indeed, NECNP in its March 24, 1989 Brief on Appeal of a

LBP-88-32 expressly stated at 1: i In light of the Appeal Board's directive to avoid repetitive arguments, NECNP has not briefed all of the issues that are of concern to-it. Therefore, we adopt and incorporate'by reference the briefs filed by the other Intervenors.

2. On November 9, 2 days after ALAB-924 issued, the Mass AG asserted the Commonwealth's right as an interested state to-involve itself in the further resolution of all the remanded issues. Egg Intervenors' November 9 Request for Prehearing Conference in Response to ALAB-924 at 3.n.1:

The Mass AG hereby asserts his right as an interested state--

to participate fully in all remanded issues.

In effect,_even if the Mass AG is-deemed not to have participated below in three of the four remanded issues (the teachers,'the special facility ETEs and the Special Needs Survey) and otherwise not to have briefed any of these issues on appeal, upon the issuance of ALAB-924, the Mass AG expressly asserted his right under NRC law to come into this part of the

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• proceeding, as it were, " late" and involve itself in any further resolution of the remanded issues. As such the Mass AG' takes the proceeding as he finds it which is precisely what he has'done since November 9, 1989:

M a. TLT Mass T.G (with SAPL and NECNP) filed a motion for mandatory rel. 1 on November 13 with the Appeal Board pursuant to its jurisdiction over LBP-88-32, claiming that this 7

Board's disposition of the remanded issues in LBP-89-32 violated the mandate of ALAB-924. This motion represents and reflects the Mass AG's and NECNP's independent involvement in and prosecution of the issues surrounding the ALAB-924 remand.

b. Further, after LBP-89-33-issued, the. Mass AG and NECNP again asserted their independent involvement in the remanded issues by supplementing their earlier November 13 motion-with:a further motion to the Commission. This December I motion 2 / discussed in great! detail the factual and legal' errors made by this Board in its disposition of the remanded issues as explained in LBP-89-33. Obviously, Intervenors' unambiguous prosecution of the remanded issues in 2/ This December 1 mandamus. motion was an " appeal" using mandamus as the appellate procedural vehicle of LBP-89-32 and LBP-89-33 to-the extent that those decisions erred in disposing of the ALAB-924 remand. (It was also a continuation of Intervenors' appeal of LBP-88-32.) Thus, Intervenors (Mass AG and NECNP) have already annealed this Board's disoosition of the remanded issues and they did this prior to January 19, 1990. Egg Intervenors# February 6, 1990 Emergency Motion: (1)

+ to Clarify the Status of the Appeal of LBP-89-33 (312.] at 3-7.- The Mass AG also noticed his appeal of LBP-89-33 on November 22, 1989.

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>k 4 Y this regardstook place prior to January 19, 1990. Indeed, the  ;

commission itself in its Orders of November 1<6 (taking jurisdiction over the Intervenors' November 13 Motion),  ;

November 21 (setting a schedule for briefs)'and November 22 ,

(amending that schedule) acknowledged the obvious involvement i

,, i by the Mass AG and NECNP in the proper disposition of the ALAB-924 remanded issues by giving these Intervenors an express

'Emportunity to brigf.this Board's disposition as set out in-

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'LBP-89-33.

In sum, there is unequivocal evidence that the Mass AG and NECNP have prosecuted the issues remanded in ALAB-924 from November 9 forward to this date, taking all steps to preserve s t their' rights, both trial and appellate. Their prosecution of -

these issues has been acknowledged in orders of the Appeal Board, the Commission and even in the January 11 Order of this

(, Board which the Applicants argue as theTlegal predicate for "

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! their Motion. Even assuming arauendo, that this Board were to L

r,. rule that SAPL's January.19, 1990 letter effected:a withdrawal.

L or-abandonment by SAPL, or that the letter's tone or content is L

otherwise sanctionable, the Mass AG and NECNP are independently prosecuting these issues 1and have been vociferously prior to January 19. Thus, the Applicants' motion seeking dismissal of these issues should be denied.A/

JL/- Intervenors' do not repeat but simply adopt SAPL's policy arguments concerning public safety and adjudicated deficiencies in emergency planning at Seabrook.

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'If CONCLUSION l-

-For all of the reasons set forth above, the Applicants'. '

~ January 26{-1990 Motion to Dismiss Abandoned Romand Issues should be dismissed.-

A Respectfully submitted,--

COMMONWEALTH OF4 MASSACHUSETTS NEW-ENGLAND COALITION-ON JAMES M. SHANNON '

. NUCLEAR POWER ATTORNEY GENERAL

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, Diane-Curran, Esq.' n-Traficohte-Harmon,. Curran,'& Towsley ef,' Nuclear Safety Unit Suite 430 .

ne Ashburton Place-2001'S Street,:N.W.' Boston, MA 02108 Washington,.DC 20008 (617),727-2200 Dated:- February 7, 1990

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O i g' i UNITED-STATES OF AMERICA U{kECEO NRC NUCLEAR' REGULATORY COMMISSION

< ATOMIC SAFETY AND LICENSING BOARD '90 FEB -8 P4,:17 -

Before the Administrative Judges:

OrriCE OF SECRETARY Ivan W. Smith, Chairman DOCKET L RVICI.'

Dr. Richard F. Cole Kenneth A. McCollom

)

In the Matterlof ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE: COMPANY )

OF NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) February 7, 1990

)

CERTIFICATE-OF SERVICE.

I, John Traficonte, hereby certify that on February 7, 1990, I ,

made service of the within INTERVENORS' OPPOSITION TO APPLICANTS' JANUARY 26-MOTION'TO DISMISS ABANDONED REMAND ISSUES by 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.

U.S. Nuclear Regulatory Stillwater, OK 74075

' Commission East West Towers Building

• Docketing and Service 4350LEast West Highway U.S. Nuclear Regulatory Bethesda,<MD 20814 Commission Washington, DC 20555

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

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

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• Robert R. Pierce, Esq.

• Thomas G. Dignan, Jr., Esq. 5 Atomic Safety &' Licensing Board Katherine Selleck, Esq.

3 U.S. Nuclear Regulatory Commission Ropes-& Gray {

East West Towers Building One International Place 4350 East West Highway Boston, MA 02110 Bethesda, MD 20814 H. Joseph Flynn, Esq. *Mitzi A. Young, Esq.

Assistant General Counsel Edwin J. Reis, Esq.

Office of General Counsel U.S. Nuclear Regulatory  ;

Federal Emergency Management Commission Agency. Office of the General Counsel 500 C Street, S.W. 15th Floor Washington,'DC 20472 11555 Rockville Pike Rockville, MD 20852 Atomic Safety & Licensing Robert A. Backus, Esq. l Appeal-Board Backus, Meyer & Solomon-U.S. Nuclear Regulatory 116 Lowell Street lL Commission P.O. Box 516 "

Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Board Jane Doughty l U.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League.

l Washington, DC 20555- 5 Market Street' l- Portsmouth, NH 03801 l

Charles P. Graham, Esq. Barbara St. Andre, Esq.

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

l 33 Ixnt Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02110 i

( Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.

L 79 State Street Lagoulis, Hill-Whilton-H 2nd Floor & Rotondi Newburyport, MA 01950 79 State Street-Newburyport, MA 01950 -

Diane Curran, Esq. Ashod N. Amirian, Esq. ,

Harmon, Curran, & Towsley 145 South Main Street Suite 430 P.O. . Box 38 2001 S Street, N.W. Bradford, MA 01835 Washington, DC 20008 Senator Gordon J. Humphrey Senator Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynton)

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John'P.lArnold, Attorney General- Phillip Ahrens, Esq..  ;

o Office of the~ Attorney General' Assistant-Attorney-General- 2 j

I 25 Capitol Street 1 Department of the Attorney j L Concord, NH 03301. General j F Augusta, ME. 04333 )

s i Jack Dolan' George Iverson, Director '

I N.H. Office of Emergency. I (Federal Emergency Management v Agency. Management 1

-Region 1 .

State House Office Park South-  ?

J.W. McCormack Post Office &- 107 Pleasant ~ Street ZQ Courthouse Building, Room =442. Concord, NH 03301' l 4 '- ' Boston, MA.02109- 1 i

i COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL Mi n Trafico'nte sistant.' Attorney General Chief, Nuclear Safety Unit

. Department:of the Attorney General

• one Ashburton-Place o L

_,:1 Boston, MA '02108-1698 .

(617): 727-2200 D$TED: February 7, 1990

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