ML20042G819
| ML20042G819 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/14/1990 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#290-10354 OL, NUDOCS 9005160132 | |
| Download: ML20042G819 (10) | |
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. - /#35b-DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'90 MAY 14' P3 :10 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAR (y[dh$kf;I'I'k m.m i
In the Matter of Docket Nos. 50-443 OL J
PUBLIC SERVICE COMPANY OF 50-444 OL NEWHAMPSHIRE,etal.
Offsite Emergency Planning (Seabrook Station, Units 1 and 2)
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NRC STAFF OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO AMEND HIS JANUARY 24, 1990 APPEAL BRIEF 7
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l Mitzi-A. Young Counsel for NRC Staff
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May 14, 1990 9005160132 900514 PDR ADOCK 05000443 O
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d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the' Matter of Docket Nos. 50-443 OL-PUBLIC SERVICE-COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.
Offsite Emergency Planning l
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(SeabrookStation, Units 1and2)
)
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NRC STAFF OPPOSITION TO MASSACHUSETTS ATTORNEY' GENERAL'S MOTION TO AMEND HIS JANUARY'24, 1990 APPEAL BRIEF Mitzi A. Young Counsel for NRCEStaff May 14, 1990
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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l Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et.al.
)
Offsite Emergency Planning (Seabrook Station, Units 1 and 2)
NRC STAFF OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO AMEND WT9 JANUARY 24, 1990 APPEAL BRIEF INTRODUCTION The NRC Staff opposes " Massachusetts Attorney Generals [ Mass AG's]
Motion te Amend Brief In Support of His Appeal of.LBP-89-32, LBP-89-33 and Related Rulings" (hereafter " Motion") that was filed on April 27, 1990.
In the Motion, the Mass AG seeks to amend his January 24, 1990 brief filed in support of his appeal of LBP-89-32, M "to include pages 17-71 of Intervenors December 1 Supplemental Motion and Memorendum in Support of November 13 Motion to Revoke and Vacate the November 9 License Authorization."
Motion at 1.
In this manner, the Mass AG now seeks to brief on appeal "the Intervenors' claim that the Licensing Board's decision in LBP-89-33 contravened ALAB-924."
Id.
The Mass AG thus seeks to have this Appeal Board consider a claim made in the brief 'to the Commission that the Licensing Roard disobeyed the mandate of ALAB-924 and
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Brief of Massachusetts Attorney General in Support of His Appeal of LBP-89-32, January 24,1990 (" January 24 Brief").
Contrary to the suggestion in the title of the Motion, the January 24 Brief did not address either LBP-89-33 or ALAB-924 remand issues, i
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~2-I, tilat the authorization to issue a license for the Seabrook facility
" contravened the holding in ALAB-924." y.at2.
i DISCUS ~,g The Intervenors, although notic ng an appeal from the determination in LBP-89-33, failed to brief any appeal to this Appeal Board from that decision or any claim that the Licensing Board had failed to comply with 4
ALAB-924..
See Motion at 1:- Tr.10 (oral argument of April 18, 1990).
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Matters that are not briefed on appeal are not considered.
Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and. 2),- ALAB-828,
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23 NRC 13, 20 n.18 (1986);
Public Service Electric & Gas Co.
(Salem Nuclear Generating Station, Unit 1), ALAB-650,14 NRC 43, 49-50 (1981),
aff'd sub nom. Township of Lower Alloways Creek v. Public Service Electric
~& Gas Co., 687 F.2d 732 (3d Cir. 1982).
The Mass AG seeks to avoid his failure to brief and his abandonment of arguments concerning LBP-89-33 and ALAB-924, 2/ by' seeking to amend his brief of January 24, 1990 to include matters set out in a December 1, 1989, brief to the Commission.
Motion at 1..
It' is claimed that this motion to amend, to include some 54 pages of argument made.to the Comission, is timely.
This argument is specious.
The pendency of the Comission's "immediate effectiveness review" and the Mass AG's motion to vacate and stay LBP-89-32 and LBP-89-33 did not operate to stay his neeo to properly pursue appellate remedies l
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As Mass AG admitted in his January 24, 1990 appeal brief (at 1) and during oral argument (Tr.10), he did not file a brief before the Appeal Board in support of his appeal of LBP-89-33, which was noticed j
on November 22, 1990.
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i before this Appeal Board.
As 10 C.F.R. I 2.764(g) expressly states, "The Comission's. effectiveness determination is entirely without prejudice to lappellate] consideration in subsequent proceedings."
Similarly, an 3
application for a stay or an appeal to the Comission does not affect the-need to brief issues to an Appeal Board.
See 10 C.F.R. Il 2.786(b)(8),
2.788. Had the Mass AG wished to have an extension of time.to fully brief l
his appeal until the Comission ruled on the issues he now seeks to raise, he was obligated to timely seek an extension of the time for briefing'his appeals to this Appeal Board.
See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),. ALAB-117, 6 AEC '261 (1973); Boston Edison Co. (Pilgrim Nuclear Station), ALAB-74, 5 AEC 308-(1972).
The Applicants' filing of February 1, 1990 to the Licensing Board, E -
just one week after he-briefed issues to this Board, served to remind.the Mass AG of his need to brief all issues he appealed.
Instead of seeking permission to brief the issue at that time in order to preserve his appeal of LSP-89-33, the Mass AG chose to seek legal advice from the Appeal Board as to the status of his appeal of that decision. 4/--
That action was no I
substitute for seeking to supplement or amend - the January 24 brief to include LBP-89-33 and ALAB-924.
Moreover, if the Mass AG believed that the Comission's action on
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March 1, 1990, in CLI-90-03, caused " issues that [Intervenors] briefed u
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3/
Applicants' Response to Licensing Board Order of January 11, 1990, February 6, 1990, at 3.
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See Emergency Motion of the Intervenors: (1) To Clarify the Status of i
the Appeal of LBP-89-33 and (2) To Reopen the Record on the NHRERP as to the Need for Sheltering -in Certain Circumstances, February 6, j'
1990,at1-7("EmergencyMotion").
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in [the] December 1 pleading to the Commission [to? revert essentially to this Appeal Board," he should have acted shortly thereafter.
Neither 1
statements in NRC pleadings submitted to the Court of Appeals regarding.
the finality of NRC decisions (see Motion at 3) nor the Mass-AG's various stay filings (id.), relieve the Mass AG from his duty to have perfected his appeal of _LBP-89-33 before the Appeal Board.
The Mass AG's assertion that he failed to take action after the Commission's actions on March 1, 1990, because "he believed that there was certainly now ' final agency action' and therefore court jurisdiction," is no excuse.
He was well aware that other parties disputed the claim that-the filing of an appeal in the Court of Appeals ousted 'this Board of' jurisdiction; and that the other parties maintained that the Appeal Board could first pass en the substantive merits of any appeal of the Licensing Board's actions unless specifically stayed by the Court of Appeals.
See 1
American Farm Lines v. Black Ball Freight Service, 397 U.S.
540 (1970);
l ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1988); 'Jnited Transportation Union v. ICC, 871 F.2d 114 (D.C. Cir.1989); Sierra Club v.
NRC, 825 F.2d 1356,1361-62 (9th Cir.1987); Oystershell Alliance v. NRC, 800 F.2d 1201, 1203, 1206 (D.C. Cir. 1986). 5/
Even if the Mass AG believed there was " final agency action" and court review would lie, there l
-was no basis for him not to have briefed the subject matters to this Board. The risk that he was wrong is his risk alone.
5/
The Mass AG's motions for stay and mandatory relief were also denied in federal court partly on the basis of argumencs that the filing of' appeals in the Court of Appeals did not oust the Comission of jurisdiction to act further on the application for the Seabrook li cense'.
E.g., Massachusetts v. NRC, No. 89-1770 (D.C. Cir. Jan. 3, 1990); Massachusetts v. NRC, No. 90-1132 (D.C. Cir. Mar. 14, 1990).
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5-The Motion is inexcusably tardy and the matter he now seeks to add to his brief should not be considered.
Nuclear Engineering Co. (Sheffield, Illinois Low Level Radioactive Waste Disposal Site), ALAB-606,12 NRC ~
156,160 (1980) (time limits for appeals are strictly enforced). The Mass AG, an experienced litigant, should not be able to supplement his brief at or after oral argument, to allow the consideration of matters not formerly briefedontheappeal.SI CONCLUSION In
- sum, contrary to the Mass AG's ' assertion (Motion at 4),
Intervernors have not "taken every rational step" to obtain review of q
their claims concerning LBP-89-33.
The Mass AG could have taken actions l
contemporaneous with the filing of his notice of appeal and/or the issuance of CLI-90-03 to preserve his appeal of LBP-89-33.
Having failed to do so, the current motion to amend his January 24 Brief (to include arguments brief to the Commission _ on December 1 1990) is untimely and i
should be denied.
l Respecfully submitted.
4 47 Mitzi A. Young Counsel for NRC Staff l
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Dated at Rockville, Maryland
{
this 14th day of May, 1990 f
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It is noted that the Mass AG was limited to filing a brief of.100 pages on this appeal.
Order, January 19, 1990.
The requested addition of 54 pages to the 93 pages previously filed would violate that Order by a substantial number of pages.
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DOCKEILD 1
USNHC UNITED STATES OF AMERICA i
hUCLEAR REGULATORY COMMISSION g
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD bodfiftIGN!)dih In the Matter of Docket Nos. 50-443 OlMNC*i PUBLIC SERVICE COMPANY OF 50-444 OL NEWHAMPSHIRE,etal.
Off-site Emergency Planning (Seabrook Station Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF OPPOSITION TO MASSACHUSETTS ATTORNEY j
GENERAL'S MOTION TO AMEND HIS JANUARY 24, 1990 APPEAL BRIEF" in the above l
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, as indicated by double asterisks, by express mail, this 14th day of May 1990: 1990:
IvanW. Smith, Chairman (2)*
Peter Brann,.Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General I
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 Board 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.**
-1 Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74075 2S 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 i
Washington, DC 20009 1
O Robert A. Backus Esq.**
Jack Dolan a
Backus, Meyer & Solomon Federal Emergency Management Agency 116 Lowell Street Region !
Manchester, NH 03106 J.W. McCormack Post Office &
Courthouse Building, Rcom 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 360 Portsmouth, NH 03801 Mrs. Anne E. Goodman. Chairman Board of Selectmen George Hahn, Esq.
13-15 Newmarket Road Attorney for the Examiner Derham, NH 03824 Hahn & Hesson 350 5th Ave, Suite 3700 Hon. Gordon J. Humphrey 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 98021-9795 I
Civil Defense Director I
Town of Brentwood Peter J. Matthews, Mayor 20 Franklin City Hall Exeter, NH 03833 Newburyport, MA 01950 William Arn. strong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter, NH 03833 South Hampton, NH 03827 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 Winnatunnet Road Bradford, MA 01835 Hampton, NH 03842 Barbara J. Saint Andre. Esq.
Kopelman and Paige P.C.
Town Counsel 101 Arch Street Boston, MA 02110
., 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 03844 Concord, NH 03301 Atomic Safety and Licensing Robert R. Pierce, Esq.*
Board Panel (1)*
Atomic Safety and Licensing U.S. Nuclear Regulatory Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of the Secretary (2)*
U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Washington, DC 20555 Appeal Panel (6)*
Attn:
Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, DC 20555 Edwin J. Rei Deputy Ass ant General Counsel for Re, tor Licensing
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