ML20012F682

Intervenors Motion for Reconsideration.* Requests Reconsideration of Board Summary Denial of 900411 Motion for Immediate Stay or Cessation of Further Aslab Review.Motion Does Not Vest Board of Jurisdiction.W/Certificate of Svc

ML20012F682
Person / Time
Site:	Seabrook
Issue date:	04/12/1990
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10241 OL, NUDOCS 9004200093
Download: ML20012F682 (7)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS.gl g i2 *  ;

ATOMIC SAFETY AND LICENSING APPEA to e

/ f Before Administrative Judgest II l@  !

G. Paul Bollwerk III, Chairman l Alan S. Rosenthal  !

Howard A. Wilber j

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )  ;

) L (Seabrook Station, Units 1 and 2) ) April 12, 1990

)

INTERVENORS' MOTION FOR RECONSIDERATION The Massachusetts Attorney General (" Mass AG") acting as Lead

.Intervenor and on behalf of all Intervenors moves for reconsideration of this Board's summary denial of his April 11 .

g Motion For Immediate Stay or Cessation of Further Appeal Board Review (" April 11 Motion"). As grounds for reconsideration, the  !

Mass AG states as follows:

1. The April 11 Motion is not " inexcusably tardy."

a. First, until " final licensing action" was taken and a petition for review was filed, no grounds would exist for a cessation of further intra-agency appellate process. Such " final action" was taken March 1, 1990 (effective March 8, 1990). A 9004200093 900412 PDR ADOCK 05000443 0 PDR

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[ petition.for review was filed March 7, 1990.1/

b. However, as the Mass AG has repeatedly asserted, the filing of a petition for review, without more, does nnt appear to automatically vest this Board of appellate jurisdiction. Instead, duplicate and overlapping jurisdiction of f

the kind that formed the predicate of the April 11 Motion results if_and only if a litigant after filing a petition for review with  ;

the Court of Appeals then proceeds to advance claims of legal error on matters also pending elsewhere. The first step in -

l advancing such claims before the court of Appeals is to identify ,

the rulings which the appellant seeks review of in a docketing statement.2/ This first step was n21 taken in this case until April 9, 1/ Although the Mass AG believed that the November 9 license authorization was." final action" and did file a petition for  !

review therefrom the " finality" of that action was vigorously contested by the Commission in the form of a motion to dismiss. Had the Mass AG sought a stay from this Board between December 4, 1989 and March 7, 1990, it is obvious that the Commission's public position in the Court of Appeals would have guided this Board's analysis of the issue. Moreover, because Intervenors in that period were awaiting the Commission's decision on their mandamus motions (which if granted would have terminated any Court of Appeals jurisdiction and returned the case status cuo ant.g November 9) a stay of intra-agency appellate process would have made little sense. If the Intervenors' mandamus had been granted, the ostensibly " final licensing action" revoked and the Court's jurisdiction terminated, then intra-agency appellate process would not have bean in conflict with judicial review and there would be no grounds for a motion similar to the April 11 Motion.

2/ For example, if an appellant raises claims of error concerning an intermediate or interlocutory decision for the first time in his brief, he may be subject to the argument that such error is not before the Court if that intermediate or interlocutory decision had never been earlier identified as part of the appeal.

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i 1990. Thus, the motion was filed within 2 days of the onset of

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those circumstances which form the predicate for the motion.2/  !

i 2. The motion is nel " totally lacking in substance."

a. As set out in the April 11 Motion, Intervenors  !

have put cortain appellate issues before this Board and to date have not withdrawn them. But they_ sought all further  ;

intra-agency appellate process after November 9, 1989 only to t

erotect their rights to such process in the event judicial review did not lie from the November 9 authorization (either because it was not " final" or because it was revoked). They have initiated no further intra-agency process after the March 1 immediate effectiveness decision. Thus, pursuant to 5 USC $704 (third sentence) after " final agency action" notwithstanding that intra-agency appeals are pending (as a result of actions taken orier to final agency action) i Intervenors seek iudicial review of interlocutory and intermediate decisions also earlier briefed to this Board. 5

'USC 5704 (second sentence). Because the result will be overlapping and duplicative appellate jurisdiction which is not favored, Intervenors seek a stay of this Board's further review. l l

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l 2/ The Intervenors/ Petitioners made a determination on April 9  ;

as to what decisions they would seek to appeal. Before that determination was made (for example, on March 27 when the Mass l l

AG appeared before this Board) duplicative jurisdiction was a l possible but not necessary outcome. I l

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b. To the extent this Board's disposition of the

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L April 11 Motion is based on the Intervanors' failure to date to i l

seek a stay of further intra-agency appellate process or i l otherwise seek an order from the Court of Appeals directing  !

i this Board to cease and desist, the Mass.AG believes it was ,

appropriate and indeed necessary to first seek such relief from i this Board. Thus, if the grounds for the denial of the April l 11 Motion include the failure by the Mass AG to first seek  !

direction from the Court of Appeals, there is circular motion -

here, because the Court would likely have required that the Mass AG first attempt to obtain relief from this Board. t

3. Finally, although in the abstract there appears to be ,

no great harm in this Board simply hearina oral argument, the Mass AG will affirmatively have to orement araumont on April 18 or otherwise rest on the written submissions or otherwise withdraw all or portions of his appeal. It is this Hobson's choice which prompted the April 11 Motion.

For all of the reasons set forth above, this Board should reconsider its summary denial of the Intervenors' April 11 Motion.

Respectfully submitted, JAMES M. SHANNON ,

ATTORNEY GENERAL  !

/

hn Trafidonte I hief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: April 12, 1990 49- 1

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$c 3- e l I UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION N s g' g. -*

ATOMIC SAFETY AND LICENSING APPEAL B D \ 1 \900 --  !

Before Administrative Judges: O

.f/  %  ;

G. Paul Bollwerk III, Chairman ' //;f . gg i Alan S. Rosenthal Howard A. Wilber i t

) ,

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

) 50-444-OL ,

PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET E. )

)

(Seabrook Station, Units 1 and 2) ) April 12, 1990

)

i CERTIFICATE OF SERVICE '

I, John Traficonte, hereby certify that on April 11, 1990, I made service of the enclosed INTERVENORS' MOTION FOR RECONSIDERATION via telefax 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

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Docketing and Service

• Thomas G. Dignan, Jr. )

! P U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 i

One International Place Boston, MA 02110  !

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

i Edwin J. Reis, Esq. Assistant Attorney General i

U.S. Nuclear Regulatory Commission Department of the Attorney General i 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 Diano Curran, Esq.

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

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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

g-i l Paul McEachern, Esq. l Shaines & McEachern 25 Maplewood Avenue, PO Box 360 Portsmouth, NH 03801

• 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 & Licensin'g 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 N.H. Office of Emergency Management State House Office Park South 107 Pleasant Street Concord,. NH 03301 E

Respectfully submitted, JAMES M. SHANNON ATTO EY GENERAL 6' N 6 n Taficonte sitant Attorney General

Chief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place

! Boston, MA 02108 l

(617) 727-2200 l-1 Dated: April 12, 1990 1

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