ML20012F689

Licensee Memo Re Jurisdiction of Appeal Board Over Appeals of LBP-89-28.* Court Has Not Acted on Motion & LBP-89-28 Is Not Before Court of Appeals.Certificate of Svc Encl

ML20012F689
Person / Time
Site:	Seabrook
Issue date:	04/04/1990
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10221 LBP-89-28, OL, NUDOCS 9004200125
Download: ML20012F689 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g g g .y ,

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before the i+; te.  ;

ATOMIC SATETY AND LICENSING APPEAL BOARD In the Matter of I PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL f 0F NEW HAMPSHIRE, it al. 50-444-OL l

(Seabrook Station, Units 1 ~

(Offsite Emergency {

and 2) Planning Issues) l t

i LICENSEES' MEMORANDUM WITN RESPECT To i JURISDICTION OF TEIS APPEAL BOARD I OVER APPEALS OF LBP-89-28 f

Under date of March 29, 1990, the Intervenors have filed a i memorantum addreseing the issue of this Appeal Board's f i

jurisdicticn to entertain the appeal of LBP-89-28. As we l understand the position taken by the Intervenors, it is that the  !

! pendency of Commonwealth of Massachusetts v. HEC, No. 90-1132 (D.C. Cir.) (hereafter "No. 90-1132) precludes this Appeal Board from entertaining this appeal absent the assent of all parties f

thereto. The Intervenors have given limited assent, good until l

they filt; their docketing statement.' Licensees have taken the '

'We confess to a lack of understanding as to the ,

l significance of the filing of the docketing statement. i Jurisdiction eit:1er is with this Appeal Board now or it is not; i the filing of the docketing statement does nothing to confer, JURI$tR.St 90042001P5 900404' >

PDR ADDCK 0D000443 '3 O PDR 0 1

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• I position that if assent is requihed, as Intervenors argue,  ;

Applicants do not consent.3 Novaver, as seen below, no such  !

I assent by anyone is necessary for an Appeal Board of the NRC to l entertain an appeal of LBP-89-28 as of this time.

l NRC case law is clear to the effect that the Commission and j its appeal boards will proceed with intra-agency appeals even f i

though a petition for review is pending in a Court of Appeals at {

i least absent a situation where the intra-agency appeal is of a j decision which is squarely before the Court of Appeals under the l petition for review.3 Unfortunately for Intervenors, LBP-89-28 i

is not before any Court of Appeals. j At this juncture, the only live case dealing with Seabrook's  ;

full power license in the United States Court of Appeals for the District of Columbia Circuit is No. 90-1132.' Another case which  !

attenpted to bring up for review the decision of the Licensing Board authorizing issuance of the full power license, LBP-89-32, i 1

commonwealth of Massachusetts v. HEC, Po 89-1743 (hereafter "No. i 89-1743") has been dismissed.5 Thus, to the extent the f i

i nova or erase jurisdiction in any tribunal.

i I II. 62 (March 27, 1990).

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3Public Service Company of New Hannshire (Seabrook Station, Units 1 and 2) , ALAB-349, 4 NRC 235, 242-45 (1976); Public l Service comennv of New Haneshire (Seabrook Station, Units 1 and t 2), ALAB-350, 4 NRC 365, 366 (1976). Ett 1112 Public Service comenny of New Hamoshire (Seabrook Station, Units 1 and 2), CLI- l 76-24, 4 NRC 522, 523 (1976).

'The other live case deals with the low power license.

Commonwealth of Massachusetts v. HEC, No. 89-1306.

'N o . 89-1743 Order (March 7, 1990).

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i jurisdictional argument relies upon the concept that LBP-89-28

,6 was included in the Petition for Review filed in No. 89-1743, the order of dismissal vitiates that argument.

The matters which are the subject of No. 90-1132 were first brought to the Court by various motions filed in No. 89-1743.

These motions included a motion entitled: " Petitioners' Motion to Amend Petition for Review or, in the Alternative, to Have Their March 7 Dispositive Motion Deemed a Petition for Mandamus" (here after " Motion to Amend").

After the Court dismissed No. 89-1743, it entered another order which, inter glia, gave birth to No. 90-1132. In that order, referring to the Motion to Amend, the Court:

"0RDERED that the motion to amend petition bg construed as a new netition for review or in the alternative, a petition for writ of mandamus. The new petition shall be designated as No. 90-1132 and captioned Commo et al. v.

g ,..nwealth of Massachusetts, As a result of the above-quoted order, the scope of the live case, No. 90-1132, is the review sought in the Motion to Amend.

l A review of that document reveals that the review thereby sought is solely of Public service comoany of New Hannshire (Seabrook Station, Units 1 and 2) , CLI-90-02, 31 NRC (March 1, 1990) and Anl% Pages 1-15 of Public Service Connany of New Hannshire (Seabrook Station, Units 1 and 2), CLI-90-03, 31 NRC (March 1, 1990).I CLI-90-02 of course has nothing to do with

'No. 89-1743 Order (March 7, 1990) (emphasis added).

l l ' Motion to Amend at 3 n.2.

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LBP-89-28, it being the answer to a certified question. In the j case of CLI-90-03, Pages 1-15 dealt only with the Commission's [

denial of Intervenors' notion to vacate LBP-89-32 on the grounds that the Licensing Board had no power to authorite a full power license in light of the Appeal Board decision in Bdglie service connany of New Haneshire (Seabrook Station, Units 1 knd 2), AIAB-924, 30 NRC (Nov. 7, 1989). The portion of CLI-90-03 that  !

I deals with LBP-89-28 deliberately was not taken up. It is true  !

l that in a footnote in a reply brief before the Court of Appeals, the Intervanors stated:  ;

" Petitioners, as noted, analogized the I situation to noticing the appeal after the  :

disposition of a discretionary notion for  :

reconsideration or new trial. If this is in ,

error and the court finds that the Petition l for Review in Docket No. 90-1132 must also expressly identify the non-adjudicatory (

portions of CLI-90-03 for jurisdiction to 4 lie, Petitioners request that this repl  !

deemed an amended Petition for Review."y be i Prescinding from the propriety of tucking a notion to amend in a footnote of a reply brief,' the fact is the Court has not acted on the motion and therefore, as of this writing, LBP-89-28 is l \

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"No. 90-1132, Petitioners' Recly to the Resoondents'  !

Oooosition to "DisDositive Motion" and " Motion for Eroedited I consideration" (March 13, 1990) at 9 n.11.

'In addition, the footnote went on to make clear that the Intervenors were seeking the amendment only for jurisdictional purposes, repeating that "[t] hey do not seek judicial review of the non-adjudicatory, non-merits discretionary decision

' approving' the license." Petitioners' Reclv, supra n.8 at 9 l n.11.

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I simply not before the court of Appeals, never mind squarely [

I before it.  !

i I Respectfully submitted, l 1

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~ Thomas 4. dpfynan, Jr.  ;

George H. Lewald i Xathryn A. Selleck  !

Jeffrey P. Trout {

Ropes & Gray }

one International Place i Boston, MA 02110-2624 (617) 951-7000

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Counsel for Applicants l i

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CERIIFICATE OF SERVICE f 2, Thomas G. Dignan, Jr. , one of the attorneye fo)O ygR t -9 P3 :46 l Licensees herein, hereby certify that on April 4, 1990, I i made service of the within document by depositing ccytes s sgnifiay l thereof with Federal Express, prepaid, for delivery.teK41 4 Sf 'WICI.

whereindicated,bydepositingintheUnitedStatesmail!gNLM l first class postage paid, addressed to): j t

Alan S. Rosenthal, Chairman Howard A. Wilber i Atomic safety and Licensing Atomic safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory -

Commission Commission  !

East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway .

Bethesda, MD 20814 Bethesda, MD 20814 Thomas S. Moore Mr. Richard R. Donovan I Atomic Safety and Licensing Federal Emergency Management t Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center  !

Commission 130 228th Street, S.W. ,

East West Towers Building Bothell, Washington 98021-9796 l 4350 East West Highway Bethesda, MD 20814 l

Administrative Judge Ivan W. H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel and Licensing Board Federal Emergency Management {

U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.

East West Towers Building Washington, DC 20472  ;

4350 East West Highway ,

Bethesda, MD 20814 i Administrative Judge Richard F. Gary W. Holmes, Esquire Cole Holmes & Ells  !

Atomic Safety and Licensing Board 47 Winnacunnet Road l U.S. Nuclear Regulatory Commission Hampton, NH 03842 '

East West Towers Building  ;

4350 East West Highway Bethesda, MD 20814 i Administrative Judge Kenneth A. Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor '

1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 l i L

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,_ . . . _ ~ __ _ __ __ ._. . _ . _ . _ .

l George Dana Bisbee, Esquire Robert R. Pierce, Esquire Associate Attorney General Atomic Safety and Licensing ,

office of the Attorney General Board j 25 Capitol street U.S. Nuclear Regulatory Concord, NH 03301-6397 l Commission i East West Towers Building l 4350 East West Highway  ;

Bethesda, MD 20814 l

t Mitai A. Young, Esquire Diane curran, Esquire  !

Edwin J. Reis, Esquire Andrea C. Forster, Esquire l Office of the General Counsel Harmon, Curran & Tousley U.S. Nuclear Regulatory Commission Suite 430 i One White Flint North, 15th F1. 2001 S Street, N.W.  !

11555 Rockville Pike Washington, DC 20009 i Rockville, MD 20852  ;

Adjudicatory File Robert A. Backus, Esquire I Atomic Safety and Licensing 116 Lowell Street i Board Panel Docket (2 copies) P.O. Box 516  !

U.S. Nuclear Regulatory Manchester, NH 03105  !

Commission  !

East West Towers Building  ;

4350 East West Highway '

Bethesda, MD 20814

• Atomic Safety and Licensing Suzanne P. Egan, City Solicitor e Appeal Board Lagoulis, Hill-Whilton & i U.S. Nuclear Regulatory Rotondi  ;

Commission 79 State Street I Washington, DC 20555 Newburyport, MA 01950 Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General i Department of the Attorney Department of the Attorney  !

General General l Augusta, ME 04333 One Ashburton Place, 19th F1.

Boston, MA 02108  !

Paul McEachern, Esquire Barbara J. Saint Andre, Ecquire Shaines & McEachern Kopelman and Paige, P.C.  !

25 Maplewood Avenue 77 Franklin Street P.O. Box 360 Boston, MA 02110 Portsmouth, NH 03801  ;

R. Scott Hill-Whilton, Esquire Ashod H. Amirian, Esquire i Lagoulis, Hill-Whilton & 145 South Main Street Rotondi P.O. Box 38 79 State Street Bradford, MA 01835 I Newburyport, MA 01950  ;

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• senator Gordon J. Humphrey

• senator Gordon J. Humphrey U.S. Senate one Eagle square, suite 507 ,

Washington, DC 20510 concord, NH 03301 I (Attn Tom Burack) (Attn Herb Boynton)

G. Paul Bo11werk, III, Chairman George Iverson, Director  !

Atomic safety and Licensing H.H. office of Emergency  !

Appeal Panel Management l U.S. Nuclear Regulatory Commission state House Office Park south ;

East West Towers Building 107 Pleasant street  !

4350 East West Highway Concord, NH 03301 l Bethesda, MD 20814 '

Mr. Jack Dolan i Pederal Energency Management Agency '

Region I '

J.W. McCormack Post Office &

Courthouse Building, Roon 442 i Boston, MA 02109 '

Thomas 55 G.' Digypn, Jr.

(*=0rdinary U.S. First class Mail.)

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