ML20012E720

Intervenors Memo of Law Re Boards Present Jurisdiction.* Final Licensing Action Has Occurred.Adjudicatory Determination Made on 891109 Constitutes Final Agency Action.Certificate of Svc Encl

ML20012E720
Person / Time
Site:	Seabrook
Issue date:	03/29/1990
From:	Backus R, Curran D, Traficonte J 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-#290-10167 LBP-89-28, OL, NUDOCS 9004060171
Download: ML20012E720 (9)

Text

. . .

11

b ') b  ;

1

' li .

DOCKETED i USNRC  !

UNITED STATES OF AMERICA NUCLEAR ~ REGULATORY COMMISSION D, ATOMIC SAFETY AND LICENSING APPEA Bg0 Pl2:37.

A . I Before Administrative JudgeFF!CE DF SECRETARY l LUCXL ill;r, r. SticylCI. -

Thomas S.: Moore, Chairman EU'NU  ;

G. Paul.Bollwerk, III Howard A. Wilber 1

) .

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) ) March 29, 1990

)

L . INTERVENORS' MEMORANDUM OF LAW REGARDING THIS BOARDS' PRESENT JURISDICTION At oral-argument on March 27, 1990 regarding Intervenors' appeal of LBP-89-28 (the'" low power testing decision"), this 2

l Board requested a memorandum of law on certain arguments L

l presented by Intervenors regarding the jurisdictional basis of l

L further intra-agency appellate process in light of the pendency in the. Court of Appeals (Docket No. 90-1132) of a Petition for Revios of the agency's " final licensing action" -- the November 9 license authorization made effective by the Commission in its March 1 "immediate effectiveness" decision.

Intervenors do not here repeat their arguments set forth in their December 18 " Petitioners Opposition to Respondents' Motion to Dismiss" filed with the Court of Appeals in Docket No. 89-1743 and attached as Exhibit 1 to Intervenors' January 22 Brief in Support of their Appeal of LBP-89-38 (the September 1989 exercise E 9004060171 900329' t PDR ADOCK 05000443

})

l h G PDR

9

-r decision).1/ Instead they summarize their view as follows:

1., " Final licensing action" has now occurred. The adjudicatory determination made on November 9, 1989 to authorize a' license together with the non-adjudicatory executive decision of the= Commission to allow that authorization'to become effective 2/ on March 1, 1990 constitutes " final agency action" under 42 USC 52239(b) and 5 USC 5704.

1 Although the' Court of Appeals on March 7,

-1/ 1990 did not find  !

the November 9 license authorization to be a final-licensing l action standing alone and dismissed Intervenors' December 4 Petition-for Review,-the arguments set out in the December 18  ;

' pleading concerning the relationship between " finality" and

" jurisdictional exhaustion" once final agency action hag '

ggpurred are applicable to the present situation. The court of Appeals determined that until the immediate effectiveness decision is. issued the license authorization is not yet decisionally final under 5 Usc 5704 (third sentence). That has l

.now occurred and the availability of further agency appellate  !

process is no longer relevant to a determination whether agency <

( action is " final" for purposes of judicial review as set out in l detail in the December 18 p3eading.

2/ The non-adjudicatory decision is necessary for " final

-agency action" and triggers judicial review. But that review  ;

has as its focus claims of legal error made in the adjudicatory i proceeding which is made " final" by the non-adiudicatory executive decision to issue a license. By delaying or deferring its non-adjudicatory immediate effectiveness i decision, the Commission as a colicy matter can decide to  !

. permit further intra-agency adjudicatory processes (specifically agency appellate processes) to take place which ,

-appellate decisions would then supercede the Licensing Board's I authorization as the last adjudicatory word of the agency prior to the license'actually issuing. In this way, " finality" is

~

.affected by the immediate effectiveness decision -- the timing-of that decision determines in what posture the adiudicatory l oroceedina will be in when judicial review begins. But, l although the immediate effectiveness decision is intimately ,

l linked in this way to the adjudication, it is not itself oart ~

of that adiudication. 10 CFR 2.764(g). Therefore, judicial review must await that decision but then that review focuses on the' underlying adiudicatory process now made final. Any other interpretation would result in the anomaly of having judicial review aimed at a non-adjudicatory decision and having no mechanism for judicial review of the adjudicatory proceeding underivina the licensing action as its necessary predicate.

r -

M M

i; 2.- Intervenors have'now petitioned for review of that final licensing action. As:a consequence, they have a right to seek judicial review of whatever intermediate, interlocutory or otherwise not yet final decisions and orders had issued in the adjudicatory proceeding which decisions and orders are now made reviewable by the fact of the final licensing action forming >

the predicate for judicial review. 5 USC 5704 (second sentence).2/ Intervenors seek and obtain this judicial -

review by noticing an appeal and in their docketing statement and appellate brief advancing their claims of error.

3. In these circumstances, Intervenors do not see a basis ,

at this time for further agency' appellate proceedings.S/ 3 p , Certainly, Intervenors after final acency action (on March 1, ,

i p

2/ ~ Again such decisions and orders could have been issued by the Licensing Board, the Appeal Board or the Commission. Under 5 USC'5704 (third. sentence), no " exhaustion" requirement any longer obtains.. The Commission by the timing of its immediate effectiveness decision already. decided at what stage or in what

, profile the agency's adjudicatory process would be reviewable.

Thus, it is irrelevant to judicial review that some of the interlocutory decisions or orders now made reviewable have not

'been reviewed to date by this Appeal Board and/or by the Commission. " Exhaustion" as understood to be a requirement that intra-agency appellate review of a decision or issue is complete before court review will lie is simply not relevant to this proceeding at this point in light of 5 USC 5704 (third sentence).

A/ Intervenors-do recognize that the agency takes a different, although manifestly incorrect, view of " final agency action."

That view lanores and expressly contradicts 5 USC 5704 (third sentence) and the express provisions of the Atomic Energy Act, 42 USC 52239(b).

o

e, 1990) have taken no steps to prompt or otherwise cause such j further agency process. Indeed, Intervenors seek only to protect their intra-agency appellate rights in the event that J -the final 111 censing action is revoked and remanded upon '

l ' judicial review. Nonetheless, this Board continues to i proceed.E/

4. In these circumstances, Intervenors, although failing. '

to understand on what basis the Appeal Board is proceeding,5/ ,

do not~ object to such further review unless and until it interferes with the court's jurisdiction over issues briefed by.

the Intervenors to the Court. At such time and as to such issues, this Appeal Board should cease and desist from

. considerinn these matters further.

5. .The jurisdictional void across which this Appeal Board  :

appears to be moving is clear from the limited case law on this issue.

5/ Intervenors' note that on March 22,.1990, the other panel of

+

this Appeal Board issued an order indicating its intention to proceed-in its review of other Licensing Board decisions challenged by Intervenors.

L/ At oral argument, this Board (Moore, J.) intimated that the agency might be " reconsidering" its licensing decision and further agencyJappellate process may reflect such _

~

" reconsideration." Transcript of March 27 Oral Argument at

19. Because motions for reconsideration may affect-" finality" for purposes of judicial review, Intervenors emphasize the following: 1) They-have never sought " reconsideration" or anything akin to'it after " final agency action."' Instead, they have simply taken all steps necessary to preserve their appellate rights. 2) The agency has not stayed operation pending this " reconsideration."

J

+ Except as a statute may otherwise provide, the institution of proceedings for review of the order of an administrative agency deprives the agency of its jurisdiction over the  ;

subject matter of the order during the pendency of such j proceedings. l 73A C.J.S. E194. See also: Atchison. Toneka and Santa Fe 1

Railway Co. v. U.S., 231 F. Supp. 422, 427 (N.D. Ill. 1964)  ;

(noting that agency " reconsideration" after petition for review l is filed is-customarily pursuant to court approval, but holding l

+

c that such " courtesy" may not be demanded); McClatchy i

Broadcastina Co. v. FCC, 239 F.2d 19, 23-24 (D.C. Cir. 1956)

(holding that agency should apprise the court of further proceedings when review is pending and that agency "should not render an appeal moot without the court's knowledge or consent ,

by in effect substituting a new and different order for that l

which is under challenge"); American Farm Lines v. Black Bgli Freicht Service, 397 U.S. 532, 541 (1970) (holding that after judicial review is sought agency is "without power to act inconsistently with the Court's jurisdiction" auctina Inland Steel Co. v. U.S. at 306 U.S. 153, 160) ; Anchor Line Limited v.

Federal Maritime Commission, 299 F.2d 124, 125 (D.C. Cir. 1962)

(agency seeking to reconsider should " move the court to remand or to hold the case in abeyance pending reconsideration by the agency");2/ Greater Boston Television Corooration v. FCC, 463 F.2d 268, 283 (D.C. Cir. 1971) ("Once a petition to review 1

i 2/ Againt Intervenors have not sought such " reconsideration",

and do not accede to it absent a stay or suspension of full power licensing and operation pending such reconsideration.

'b,

r e  :

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."); U.S. v. Benmar _;

Trans. & Leasina Coro., 444 U.S. 4, 5 (1979) (approving further i agency action when such does not interfere with proceedings in  !

reviewing court and all narties concur in agency decision to reopen and to hold judicial review in abeyance pending that further review).

-Intervenors will file a copy of their Docketing Statement in Docket No. 90-1132 with this Appeal Board at the time it is filed with the Court of Appeals. r Respectfully submitted, NEW ENGLAND COALITION ON JAMES M. SRANNON NUCLEAR POWER ATTORNEY GENERAL

'Ab MNf0T , bw '

Diane Curran, Esq. ohn Traficodte Harmon, Curran, & Tousley Ch'ief, Nuclear Safety Unit Suite 430 m Department of the Attorney General 2001 S Street, N.W. One Ashburton Place l Washington, DC 20008 Boston, MA 02108 (202).328-3500 (617) 727-2200 l l SEACOAST ANTI-POLLUTION i LEAGUE bN?  % kV1 f$

Robert Backus, Esq. 'M Backus, Meyer, & Solomon 116 Lowell Street P.O. Box 516 Manchester, NH 03106 (613) 668-7272 DATED: March 29, 1990

UNITED STATES OF AMERICA LOLnETED NUCLEAR REGULATORY COMMISSION Uh*C t-ATOMIC SAFETY AND LICENSING APPEAlgOW30 N:37 f

Before Administrative Judgest QFMCE OF SLCitt 1ARY Thomas S. Moore, Chairman "UCKLIfjrgtevit!.

G. Paul Bollwerk, III Howard A. Wilber

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

p OF NEW HAMPSHIRE, ET AL. )

J )

(Seabrook Station, Units 1 and 2) ) 11 arch 29, 1990

)

, CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on March 29, 1990, I made service of the enclosed INTERVENORS' MEMORANDUM OF LhW REGARDING THIS BOARD'S PRESENT JURISDICTION BY Federal Express as indicated (*), by hand 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 Commission Stillwater, OK 74075 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 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814

• The enclosed document was also faxed to NRC Staff on March 29, 1990.

4 i

• Docketing and Service ** Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110

• Mitzi A. Young, Esq. Phillip Ahrens, Esq.

Edwin J. Reis, Esq. Assistant Attorney General 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.

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.

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

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

s Paul McEachern, Esq. j 1

Shaines & McEachern  !

25 Maplewood Avenue '

P.O. Box 360 Portsmouth, NH 03801

• G. Paul Bollwerk, III

• Thomas S. Moore, Chairman '

Atomic Safety & Licensing Atomic Gafety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission  ;

Washington, D.C. 10555 U.S. Nuclear Regulatory Commission Washington, D.C. 10555

• Howard A. Wilber Jack Dolan '

Atomic Safety & Licensing Federal Emergency Management Agency >

Appeal Board Region 1  !

U.S. Nuclear Regulatory Commission J.W. McCormack Post Office &

Washington, D.C. 10555 Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director Alan S. Rosenthal N.H. Office of Emergency Management Atomic Safety & Licensing State House Office Park South Appeal Board 107 Pleasant Street U.S. Nuclear Regulatory Commission Concord, NH 03301 Washington, DC 10555 Respectfully submitted, ,

JAMES M. SRANNON t ATTORNEY GENERAL

(! '

s hn Traficonte 4hsistant Attorney General

/ thief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated March 29, 1990

__