ML20042D857
| ML20042D857 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/05/1990 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#290-10203 CLI-90-03, CLI-90-3, LBP-89-32, OL, NUDOCS 9004110061 | |
| Download: ML20042D857 (5) | |
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.lO7. 0 Tj 4/5/90 00CKETED USNRC UNITED STATES OF AMERICA
'90 APR -6 P1 :39 NUCLEAR REGULATORY COMMISSION GrrlCE OT SECRf7ARY BEFORE THE ATOMIC SAFETY AND LICENSING BOARD isocni.Ig. icevict in the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE,.e_t d.
Off-site Emergency Planning t
(Seabrook Station, Units 1 and 2)
NRC STAFF'S RESPONSE TO FEMA REQUEST FOR LEAVE TO FILE IN OPPOSITION TO MOTION TO REOPEN THE RECORD The NRC Staff supports the " Request for Leave To File Opposition of the Federal Emergency Management Agency to Emergency Motion of the Intervenors to Reopen the Record, for Summary Disposition As to the Need for Sheltering in Certain Circumstances and for License Revocation "' dated March 28, 1990.
Under 10 C.F.R. i 50.47(a)(2) the Nuclear Regulatory Commission will base its findings on Federal Emergency Management Agency (FEMA) findings and determinations on the adequacy of offsite emergency plans and whether there is reasonable assurance those plans may be implemented. Therefore it is appropriate to consider the FEMA submission herein and the NRC Staff supports l
9004110061 900405 DR ADOCK 0500 3
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2 FEMA's request to file in opposition to Intervenors' motion to reopen the record. M Respectfully submitted, bWL. Nb Edwin J. Reis Deputy Assistant General Counsel for Reactor Licensing Dated in Rockville, Maryland this 'd day of April, 1990.
M While the Staff, like FEMA, does not believe the issues sought to be raised in the Intervenors' motion to reopen are safety significant, the Staff believes that it would be legal error for this Board to predicate its ruling on that motion on Comission statements made in Public Service Co. of New Ham) Shire (Seabrook Station, Units 1 & 2), CLI-90-03, 31 NRC (March 1, 1993, slip op.15-57), during the course of the Commission's 'Tiiiiiediate effectiveness" review of LBP-89-32. See FEMA's Opposition at 2-4 At the very beginning of CLI-90-03, the Commission carefully set out which parts of that decision were rendered in an adjudicatory context and which were rendered in a non-adjudicatory context as part of the Commission's "imediate effectiveness review." id. at 3.
Under 10 C.F.R. 5 2.764(g), absent contrar "no commeni'~made in the course [of an immediate effectiveness) y instructions, determination is to be given any weight by the Atomic Safety and Licensing Board or Appeal Board in its consideration of either a stay motion..
or an appeal on the merits.
The Commission's effectiveness determination is entirely without prejudice to such consideration in subsequent proceedings." Id. Although FEMA cites Lon Island Lighting Co. (Shoreham Nuclear Power StaITon, Unit 1), ALAB-800, RC 386, 390-92 (1985) forthepropositionthat,inspiteof10C.F.R.52.764(g),
the statements of the Commission made in an "immediate effectiveness review i
might be relied on in adjudicatory proceedings; that case is not apposite. The Appeal Board there recognized that the Commission was the " ultimate arbiter" of the meaning of its regulations, and that the Appeal Board would follow such an interpretation. 21 NRC at 391.
The Appeal Board particularly noted that the l
situation concerning essentially factual matters determined in the course of an "immediate effectiveness review" was quite different and there would be "no impediment" to en adjudicatory board considering the factual matters passed upon by the Commission in such a review," and, possibly, reaching a different con-clusion." 21 NRC at 390. The issue here is not one of the interpretation of a Commission regulation, but a factual one of whether the need to provide for a particular protective action in the circumstances existing at Seabrook is safety significant. It would be legal error for this Licensing Board to predicate its decision on the Intervenors' motion to reopen the record on statements made by the Commission in the course of its "immediate effectiveness" review of LBP-89-32.
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I'0Lht I E 0 USNRC UNITED STATES OF AMERICA NUCLFID REGULATORY COMMISSION gg BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 6rF !CE Di if CRfIta In the Matter of 00CKL hNG t. bVICl, Do' ket Nos. 50-443 OL EIMNLW PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, g a_1 Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO FEMA REQUEST FOR LEAVE TO FILE IN OPPOSITION TO MOTION TO REOPEN THE RECORD" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, by express mail, this 5th day of April 1990:
Ivan W. Smith, Chairman (2)*
Peter Brann, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission State House Station 6 Washington, DC 20555 Augusta, ME 04333 Richard F. Cole
- John Traficonte. Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Boaro Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 02108 Kenneth A. McCollom Geoffrey Huntington, Esq.
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74075 25 Capitol Street Concord, NH 03301 Thomas G. Dignan, Jr., Esq.
Robert K. Gad, III, Esq.
Diane Curran, Esq.
Ropes & Gray Harmon, Curran & Tousley One International Place 2001 S Street, NW Boston, MA 02110-2624 Suite 430 Washington, DC 20009
I Robert A. Backus, Esq.
Jack Dolan Backus, Meyer & Solomon Federal Emergency Management Agency 116 Lowell Street Region I Manchester, NH 03106 J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 H. J. Flynn, Esq.
Judith H. Mizner, Esq.
Assistant General Counsel 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Robert Carrigg, Chairman Board of Selectmen Paul McEachern, Esq.
Town Office Shaines & McEachern Atlantic Avenue 25 Maplewood Avenue North Hampton, NH 03862 P.O. Box 300 Portsmouth, NH 03801 Mrs. Anne E. Goodman, Chairman Board of Selectmen George Hahn, Esq.
13-15 Newmarket Road Attorney for the Examiner Durham, NH 03824 Hahn & Hesson 350 5th Ave, Suite 3700 Hon. Gordon J. Humphrey i
New York, NY 10118 United States Senate 531 Hart Senate Office Building R. Scott Hill-Whilton, Esq.
Washington, DC 20510 Suzanne P. Egan, Esq.
Lagoulis, Hill-Whilton
& Rotondi Richard R. Donovan 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 Federal Regional Center 130 228th Street, S.W.
Allen Lampert Bothell, Washington 98021-9796 Civil Defense Director Town of Brentwood Peter J. Matthews, Mayor 20 Franklin City Hall Exeter, NH 03033 Newburyport, MA 01950 William Armstrong Michael Santosuosso Chairman Civil Defense Director Board of Selectnen Town of Exeter, NH 03833 South Hampton, NH 03027 10 Front Street Exeter, NH 03833 Ashod N. Amirian, Esq.
Town Counsel for Merrimac Gary W. Holmes, Esq.
145 South Main Street Holmes & Ellis P.O. Box 38 47 Winnacunnet Road Bradford, MA 01835 Hanpton, NH 03842 Barbara J. Saint Andre, Esq.
Kopelman and Paige, P.C.
77 Frankin Street Boston, MA 02110
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\\ Ms. Suzanne Breiseth George Iverson, Director Board of Selectmen NH Office of Emergency Management Town of Hampton Falls State House Office Park South Drinkwater Road 107 Pleasant Street Hampton Falls, NH 038t.4 Concord, NH 03301 Atomic Safety and Licensing Robert R. Pierce, Esq.*
Board Panel (1)*
Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Office of the Secretary (2)*
U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Washington, DC 20555 Appeal Panel (6)*
Attn:
Dockt. ting and Service Section U.S. Nuclear Pegulatory Commission Washington, DC 20555 b
Sherwin E. Turk Senior Supervisory Trail Attorney i
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