ML20012F687
| ML20012F687 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/12/1990 |
| From: | Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | HAMPTON, NH, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, NEWBURYPORT, MA, SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#290-10242 LBP-89-32, LBP-89-33, OL, NUDOCS 9004200118 | |
| Download: ML20012F687 (7) | |
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[.bjob '/2-I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND. LICENSING APPEAL BOARD %N Administrative Judgos:
SECRE[
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Paul Bollwerk, III, Chairman April 12',
199UA"#
Alan S. Rosenthal Howard A. Wilber APR f 21990
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In the Matter of
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l PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, gt al.
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50-444-OL
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(Offsite Emergency j
(Seabrook Station, Units 1
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Planning Issues)
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and. 2.)
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QEDEB Intervenors' Motion for Immediate Stay or Cessation of Further Appeal Board Review of LBP-89-32, LBP-89-33 and Related Rulings is summarily slenied.
The motion, filed and served late yesterday, is inexcusably tardy.
The intervenor Massachusetts Attorney General (who filed the motion on behalf of all intervenors) became aware upon receipt of our February 12, 1990 memorandum that we had tentatively decided to hold oral argument on April 18, 1990, on the intervenors' appeals from the Licensing Board determinations in question.'
- Moreover, the basis assigned for the motion was known to the Attorney L
1 Confirmation of that date was contained in the formal argument order issued on March 22.
Because of the numerous, complex issues raised by intervenors in the nearly three i
hundred pages of briefs filed in support of their appeals, l-the Board has provided two hours for argument by intervenors and a like period for responses by applicants and the NRC staff.
9004200118 900412 i
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2 General no later than March 27, 1990, when his counsel presented an essentially identical claim in the course of the oral argument of another appeal in this proceeding.2 Indeed, the thesis underlying the motion was at the roots of a still earlier motion of the Attorney General and other intervenors that was denied by us in an unpublished January 24,'1990 order.
In the totality of the circumstances, the Attorney General manifestly should have filed the present motion well in advance of April 11, a mere week before the date scheduled for the oral argument that intervenors now seek to postpone indefinitely.
In any event, we find the motion totally lacking in substance.
It rests on the proposition that the filing by intervenors of their petition for review in the United States Court of Appealr, for the District of Columbia Circuit divested this Board of jurisdiction even to consider on the l
merits the issues presented by the appeals that the intervenors have themselves put before us and have declined to withdraw.
We do not believe that there is any judicial support for that proposition.
Rather, in our view, we are free at least to entertain the pending appeals unless the l
Court of Appeals (or the Commission) directs us to do I
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2 App. Tr. 7-23.
In that argument, counsel for the Attorney General took the position that intervenors would l
" accede" to the Appeal Board conducting review of that
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appeal through the May date on which intervenors are scheduled to file their brief regarding their pending petition for judicial review.
App. Tr. 11-12.
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F i-3 otherwise.
It is clear from the intervenors' notion papers that they have yet to ask the Court for such a direction.
It is so ORDERED.
FOR THE APPEAL BOARD
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Eleanor E. HMins Secretary to %e Appeal Board Mr. Bo11werk, concurrina:
I join in the foregoing order for the reasons expressed therein.
Although we do not decide the issue here, I also note that a serious question exists whether intervenors' i
motion should be denied for another reason:
- namely, although the commission's immediate effectiveness decision under 10 C.F.R. 5 2.764 (f) may itself be a " final order" subject to judicial review, that determination did not constitute the agency's " final order" on the merits of those matters at issue in this proceeding; thus, intervenors' 1
s pending petition for review relative to that decision does not foreclose further agency review of intervenors' administrative appeals.
Esa Ohio Citizens for Responsible l
Enerav. Inc. v. HBC, 803 F.2d 258, 260-61 (6th Cir. 1986),
cert. denied, 481 U.S.
1061 (1987); Oystershell Alliance v.
l HHG, 800 F.2d 1201, 1206 (D.C. Cir. 1986).
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1 Mr. Rosenthal, concurrina:
I join the foregoing order on the understanding that f
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all that we now decide on the merits of the motion is that i
there is no current jurisdictional barrier to our hearing the intervenors' appeals.
In other words, we need not and do not now address the question whether, in the absence of an affirmative authorization by the Court of Appeals, we could take action with respect to the outstanding Seabrook operating license on the basis of the outcome of our appellate review.
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UNITED STATES OF AMERICA NUCLEAR RESULATORY COMMISSION in the Matter of i
I PUBLIC SERVICE COMPANY OF NEW l
Docket No.(s) 50-443/444-0L HAMPSHIRE.,ET AL.
1 (Seabrook Station. Units 1 and 2) i I
I r:
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing AB ORDER DENIED STAY MOTION...
have been served upon the followirg persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Administrative Judge G. Paul Bollwerk. !!!
Thomas S. Moore. Chairman Atomic Safety and Licensing Appeal Atomic Saf ety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Howard A. Wilber Administrative Law Judge l
Atomic Safety and Licensing Appeal Ivan W. Smith, Chairman l
Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Kenneth A. McCollom Atomic Safety and Licensing Board Atomic Wafety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Robert R. Pierce, Escuire James H. Carpenter Atomic Safety and Licensing Board Alternate Technical Member j
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Edwin J. Reis, Esq.
Mitti A. Young Office of the General Counsel Attorn9y U.S. Nuclear Regulatory Commienton Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 1
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Docket No.(s)S0-443/444-OL A9 ORDER DEN!ED STAY M0fl0N...
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r Diane.
Curran, Esc.
Thomas 6. Dignan, Jr., Esq.
t Harmon, Curran k Tousley Ropes & Gray
'l 2001 S. Street N.W., Suite 430 One International Place Washington,.DC 20009 Boston, MA 02110 l
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Robert A. Backus, Esc.
Paul McEachern Esq.
t Backus, Meyer & Solomon Shatnes 6 McEachern 116 Lowell Street 25 Maplewood Avenue, P.O. Box.360 Manchester, NH 03106 Portsmouth, NH 03801
'i Bary W. Holmes, Esc.
Judith H. Minner Holmes & Ells Counsel for Newburyport 47 Winnacunnet Road 79 State Street
-Hampton, NH 03042 Newburyport, MA 01950
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i Suzanne P. Egan Barbara J. Saint Andre City Solicitor Kopelman and Paige, P.C.
Lagoulis, Hill-Wilton and Rotondi Town Counsel 79 State Street 101 Arch Street Newburyport, MA 01950 Boston, MA 02110 Jane Doherty Seacoast Anti-Pollution League Ashod N. Amirlan, Eng.
5 Market Street 145 South Main Street, P.O. Box 38 Portsmouth, NH 03601 Bradford, MA 01930 George Iverson, Director George N. Watson, Esq.
N. H. Office of Energency Management Federal Energency Management Agency State House Office Park South 500 C Street, S.W.
107 Pleasant Street Washington, DC 20472 Cnncord,, NH 03301 i
Jack Dolan George D. Bisbee, Esq.
i Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH)
Office of the Attorney Seneral Boston, MA 02109 25 Capitol Street Concord, NH 03301
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Docket No.(s)50-443/444-OL
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A9 DRDER DEN 3ED STAY MOTION...
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Suzanne Breiseth John Traficonte, Esq.
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. Board of Selectmen Chief, Nuclear Safety Unit Town of Hampton Falls Office of the Attorney Beneral Drinkwater Road One Ashburton Place, 19th Floor l
Hampton Falls, NH 03844 Boston, MA 02100 i
Peter J. Brann. Esq.
Allen Laspert Assistant Attorney General Civil Defense Director Office of the. Attorney General Town of Brentwood State House Station, 86 20 Franklin Street i
Augusta ME 04333 Exeter, NH 03033 William Armstrong Anne Goodman, Chairman Civil Defense Director Board of Selectmen Town of Exeter 13-15 Newmarket Road 10 Front Street Durham, NH 03024 Exeter. NH 03033 R. Scott Hill-Whilton, Esquire
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Michael Santosuceso, Chairman Lagoulis, Hill-Whilton & McGuire Board of Selectmen 79 State Street South Hampton, NH 03B27 Newburyport,, MA 01950 Stanley W. Knowles, Chairman Norman C. Katner Board of Selectmen Superintangent of Schools P.O. Box 710 School Administrative Unit No. 21 North Hampton, NH 03862 Alumni Drive Hampton, NH 03042 Sandra F. Mitchell The Honorable Civil' Defense Director Bordon J. Humphrey Town of Kensington ATTN Janet Colt Box 10, RR1 United States Senate East Kingston, NH 03027 Washington, DC 20510 Dated at Rockville, Md. this j/
12 day of April 1990 Bfit i Bi isi iiiriiiry Bi isi 55imiiiiin 1
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