ML20011F124
| ML20011F124 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/23/1990 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20011F125 | List: |
| References | |
| CON-#190-9956 ALAB-924, LBP-89-32, OL, NUDOCS 9003010175 | |
| Download: ML20011F124 (5) | |
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l DOCMETED-USNRC UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION.
10 FEB 23 PS:13
, n BEFORE THE COMMISSION Orf:CE 0~ EECRETARY 00CKE11% A SUtvlCE
,j; BliANCH l
In the Matter of
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Docket Nos. 50-443-OL PUBLIC SERVICE: COMPANY OF 50-444-OL
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Offsite Emergency Planning j
(Seabrook Station, Units 'I and 2) i e
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NRC STAFF RESPONSE TO "INTERVENORS' REQUEST FOR AN OPPORTUNITY TO BRIEF ALAB-924 IN THE EVENT THE COMMISSION DECIDES TO REVIEW IT AND FOR A HOUSEKEEPING STAY" I
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Edwin J. Reis Deputy At,istant General Counsel for Reactor Licensing February 23. 1990 9003010175 900223 PDR ADOCK 05000443 g
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
' In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL
'NEW HAMPSHIRE, e_t a_1 Off-site Emergency Planning t
(Seabrook Station,-Units 1 and 2)
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NRC STAFF RESPONSE T0 "INTERVEN0RS' REQUEST FOR AN OPPORTUNITY TO BRIEF ALAB-924 IN THE EVENT THE COMMISSION DECIDES TO REVIEW IT AND FOR A HOUSEKEEPING STAY" On February 8, 1990 "Intervenors' Request For An Opportunity To Brief ALAB-924 In The Event The Commission Decides To Review It And For A Housekeeping Stay" (Request), was filed.
a.
Section 2.787(b)(61 of the Comission Rules of Practice, 10 C.F.R. Part 2, provides:
s If a petition for review [of an Atomic Safety and LicensingAppealBoarddecision)isgranted,the 3
Commission may issue an order specifying the issues to be reviewed and designating the parties to the review proceeding and direct that appropriate briefs be filed, oral' argument to be held, or both, j
Thus, the Comission has discretion to allow the - filing of briefs where it has granted a petition to review a decision of an Atomic Safety j
and Licensing Appeal Board. On the other hand, the Comission could review an_ Appeal Board decision on the basis of the decision itself, the record, and the briefs filed before that Board.
In the event the Comission elects to review ALAB-924, the Staff
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would not object to the Comission providing for a single additional brief of not more than 25 pages from the petitioning Intervenors specifically
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t addressing the erguments Intervenors call attention to in footnote 1 of the subjectLrequest. M No argument is made from the point of view of E
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" fairness" or otherwise as to why additional briefing is needed on any Other matter addressed in ALAB-924. U The Petitions to Review ALAB-924 are separate from the motions to vacate and stay. ALAB-924, as well as from the Comission's imediate effectiveness review'of that decision pursuant 10 CFR 6 2.764(f)(2).
The allowance of a brief on 'the merits of ALAB-924, should the Commission s
determine to review that decision, would, of itself, have no bearing upon i
the Comission's presently pending immediate effectiveness review or the
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consideration of other motions directed at vitiating ALAB-924. ef.10 CFR l'2.764(g).-
b.
The subject Request also contains arguments directed at the Comission's ability to proceed with "further merits review of the Seabrook case" in view of the Intervenors appeal of LBP-89-32 to the Court of Appeals.
However there is no final agency action here.
Although the Licensing Board issued a decision authorizing the issuance of a full power operating licen:;e for Seabrook, that decision has no effect until it was 1/
Intervenors, in that footnote, claim that the Applicants and Staff
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addressed a total of 24 pages to the correctness of ALAB-924.
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in not objecting to the filing of briefs from the Intervenor
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answering arguments made in the Staff and Applicants' opposition to
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the Motion to Vacate LBP-89-32, the Staff does not concede that any of the arguments therein were wrongly made.
The Staff could rightly set out its answer to Intervenors' arguments as to why LBP-89-32
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should be vacated including the Staffs' views.of why ALAB-924 was not a
correctly decided under the law of this Comission. The Intervenors
,;A had a full opportunity to argue that ALAB-924 was correctly decided in'the extensive briefs they previously filed seeking to vitiate LBP-89-32 and LBP-89-33.
j approvedL by' thh Comission.
As the Court of Appeals recognized in Oystershell Alliance v. NRC, 800 F.2d 1201, 1206 (D.C. Cir. 1986):
"[T]he. Comission has revised its regulations as they pertain to the ' effective date of Licensing Board
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decisions.
Under current regulations, those decisions will not become effective until they are reviewed and explicitly)(approved by the Comission.[emphasisonoriginal.]
10 C. F.R.
il 2.764(a)(f 2)(1)."
Thus, at this stage of the proceedings, where the Comission has yet to act under 10 C.F.R. 5 2.764(f)(2), there is nothing to prevent -the Comission from reviewing ALAB-924 and LBP-89-32, and reversing or vacating those decisions, if aopropriate.
The Intervenors' filing of a l
L petition for review in the Court of Appeals cannot affect the Comission's Rules of-Practice and ttaasform non-final, intermediate decisions into I
final orders so as to prevent the Comission from considering and possibly vacating intermediate orders.
Intervenors have no right to a merits review in the Court of Appeals of an order which the Comission has not approved - and no right to prevent the Comission from reviewing ALAB-924 as incident to seeing if LBP-89-32 was correctly issued and should be made effective. Cf..Intervenors' Request at 7-8.
c.
The Intervenors also request a housekeeping stay of 30 days
- should the Comission approve the imediate effectiveness order in r
LBP-89-32 allowing it to be effective.
At 8-9.
The Staff would ' not P
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.' 4 object!to a brief. stay of 7 days. lNo reason is shown why a longer stay is
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needed, particularly in _ view of-Intervenors' familiarity with the issues 3
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and its former applications seeking relief from the Court of ~ Appeals..
Respectfully submitted,
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(hh Edwiny.Reis Deputf Assistant General Counsel for Reactor Licensing Dated at Rockville, Maryland this 23rd day of February 1990 S
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