ML20043A660

Licensee Response to Appeal Board Order of 900514 & Motion to Strike Notice of Appeal.* Commonwealth of Ma,Atty General 900511 Motion for Stay Should Be Denied & Notice of Appeal Should Be Striked.W/Certificate of Svc

ML20043A660
Person / Time
Site:	Seabrook
Issue date:	05/17/1990
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10368 ALAB-916, ALAB-924, LBP-90-12, OL, NUDOCS 9005220370
Download: ML20043A660 (29)

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May 17, 1990 i

'90 MY- 18 P 3 :58 -

UNITED STATES OF AMERICA crT tcE OF SECRETARY -

00CKlilHG A SIi'VICI- I

.DRANCH NUCLEAR REGULATORY COMMISSION

..- .l before the ;l 1

ATOMIC SAFETY AND LICENSING APPEAL BOARD I

).

In the Matter-of ) ,

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. .) 50-444-OL '

1 ) (Off-site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues) l

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LICENSEE 8' RESPONSE TO APPEAL BOARD ORDER OF MAY-14, 1990, AND MOTION TO STRIKE NOTICE OF APPEAL i

i By order of May 14, 1990, this Appeal Board asked  ;

. Licensees to serve by hand, no later than~ noon on May 18, .;

l :- responses to three questions. raised by-a document filed by theLAttorney General of The Commonwealth of Massachusetts

(" Mass AG") styled ~" Notice.of Appeal-and Related Motion as to 1

LBP-90-12" (May 11, 1990) (hereinafter " Notice"].I The three 1

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Although styled as a notice "on behalf of" the Seacoast Anti-Pollution League ("SAPL") and the New England Coalition'on

' Nuclear Pollution ("NECNP") as-well as Macs AG, in fact the Notice is. signed only by counsel for Mass AG. Mass'AG has no L . standing to notice an appeal on behalf of, or to assert the-alleged interests of, SAPL and NECNP. ggg Carolina Power and j I

JFTAPRES.NH 9005220370 900517 ,

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. questions'aret (1) whether the Appeal Board should " enter an-order. precluding the Licensing-Board from conducting any ,

further proceedings concerning'the issue of sheltering the beach population,until'such time as (the Appeal Board)'

c resolve [s] those aspects of the sheltering issue for which (Mass AG) seek (s) review;" (2) whether Mass AG should "be ,

permitted to have the issues raised ~in (his) notice of appeal.

deemed submitted on the basis of (his).May 11 submission and the pleadings attached thereto;" and (3) "whether (Licensees) intend to file ~a motion to dismiss (Mass AG's) appeal with respect to any of the issues. identified in the May 11 submission and, with regard to each matter that will be subject of such a motion, specify briefly what the grounds for the motion will be." Licensees herein respond to each of

- the questions in turn and . further, pursuant to the third h . question, move to strike Mass AG's notice of appeal in its L

j. entirety, f I. THE LICENSING BOARD SHOULD NOT BE STAYED FROM FURTHER l PROCEEDINGS ON THE REMANDED BEACH SHELTER ISSUE.

This Board has already denied one attempt by Mass AG to block the Licensing Board from proceeding with the issues Llaht Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 542-43 n.58 (1986) ; Pucet Sound Power and Licht Comoany (Skagit Nuclear Power Project, Units 1 and 2) , ALAB-556, 10 NRC 30, 33 (1979); Public Service Comeany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-34, 24 NRC 549, 550 n.1 (1986).

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remanded to ' it by this Board in ALAB-924.2 -Moreover,-the ,

Commission and this Board have, on three separate occasions,-

also rejected demands by Mass AG that agency proceedings,be halted in favor of his attempts to pursue review by the Court of Appeals.3 Undaunted by these repeated rebuffs, however, Mass AG is -.

back again,- demanding that this Board-issue "an order J

preventing the Smith Board from any further processing of the 1 d

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2 order of January 24, 1990 (summarily denying '}

l' "Intervenors' Motion to Enjoin Licensing Board from Interference with Court Appeal" (Jan. 19, 1990)). .

Public Service comoany of New Hamoshire-(Seabrook 3

Station, Units 1 and 2), CLI-90-3, 31 NRC __ (March 1, 1990) l (denying, ggh'silentio, Mass AG's claim at pages 8-11 of l

"Intervenors' supplemental Motion and-Memorandum in Support of

. November 13 Motion to Revoke and Vacate the November 9 License

-Authorization" (Dec. 1, 1989) that he could strip the NRC-of any

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further jurisdiction to proceed by his filing of a notice of f appeal with the Court of Appeals) ;' order of Anril 12, 1990 (summarily' denying as, inter alia, " totally lacking in l substance," "Intervenors' Motion for.Immediate Stay or, Cessation L

l of Further Appeal Board Review of LBP-89-32, LBP-89-33 and l: Related Issues" ( April -- 11, 1990)) ; order of Acril 13, 1990 (summarily denying "Intervenors' Motion for Reconsideration" (April 12, 1990)).

'In its order of April 12, this Board-reviewed and rejected essentially the same jurisdictional argument which Mass AG repeats at pages 1-2 of the present Notice. Licensees .

.accordingly do not address that issue.further, other than to note I i

that Mass AG's argument flies in the. face of a line of recent W decisions by the very court whose jurisdiction Mass AG claims has ousted the jurisdiction of this agency. Egg United Transnortation Union v. ICC, 871 F.2d 114 (D.C. Cir. 1989);

TeleSTAR, Inc. v. FCC, 888 F.2d 132 (D.C. Cir. 1989); ICQ Concerned Workers Ass'n v. United States, 888 F.2d 1455 (D.C.

Cir. 1989).

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shelter remand issue." Mass AG states that he is entitled

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to such an order "because further' processing by the Smith -l Board of the sheltering issue as it now remains after the Board's literally absurd interlocutory rulings concerning its ..

nature and scope, is a waste of judicial resources and itself ,

a further aspect of the sham character of this proceeding."' -

• In sum, Mass AG asserts that, because he does~not like the Licensing Board's' procedural rulings to date, he'is entitled to a stay of proceedings by the Licensing Board. This.

assertion by Mass AG is unfounded as a matter of law, as well l I; as erroneous as a matter of fact. Accordingly, this Board ;j should deny Mass AG's demand for a stay.' ,

Notice at 12 (emphasis in original).

5 M. at 6 n.7.

6 Although Mass AG claims to be interested in avoiding "a waste cf-judicial resources", he also blandly announces that he "will shortly seek from the Commission an order enjoining the -

Smith Board from All further trial level process in this case."'

M. . Moreover, on May 16, 1990, Mass AG filed with the United States Court of Appeals for the District of Columbia Circuit a pleading styled as " Emergency Motion for an Order Enjoining the NRC from Further Trial-Level Adjudicatory Process" [ hereinafter I

" Emergency Motion"). In it, Mass AG demands that the Court of Appeals, "on or-before May 23, 1990", " issue an order enjoining the NRC and its Licensing Board from further trial-level adjudicatory process in the Seabrook licensing proceeding."

Emergency Motion at 6, 5.

Mass AG also states that "any further effort before the

-agency" to obtain such a stay would be " futile and pointless",  !

M. at 5, thus raising a question of whether Mass AG still intends to seek relief from the Commission -- and indeed whether he still intends to press his present motion before this Board, since such an order by the Court of Appeals (or the Commission) would moot Mass AG's present motion to this Board, and render the  ;

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t A. . The .Necessary Predicate to Mass AG's Motion --

Present Appealability of the Beach shelter sub-Issues

-- is. Lacking.

' Mass AG asks this' Appeal Board for-a stay "until the Board rules on' those aspects of [the beach shelter) issue for which Appeal Board review is now sought."7 The necessary ,

predicate to his stay request, therefore, is that those beach i

shelter sub-issues smust be properly before this Board for further appellate review at'this time, since if there_is nothing for this Board to review then there is no reason to

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H E stay the Licensing Board from proceeding.

In< fact, however, none of Mass AG's identified " aspects of that issue" are properly now before this Board. As is discussed in detail in Section III infra, the sub-issues p

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overall licensing proceeding; nor should directed certification of those issues be granted (assuming, arouendo, that Mass AG has properly sought directed certification). j h Mass AG's motion therefore lacks its essential perquisite -- ,

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an-Appeal Board review in favor of which the Licensing Board Board's and the parties' efforts to address the motion " futile-and pointless".

I Notice at 12.

a Although Mass AG acknowledges that another, distinct beach shelter sub-issue was certified to this Board by the l Licensing Board, he-pointedly does not seek a stay pending an f answer to the certified question. Comoare Notice at 5 12 id. at 12.

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t proceeding should'be stayed -- and the motion should be denied on that ground alone.

B. Mass AG Bas Not,8hown That a stay Pending Appeal is Warranted. .

As'noted above, Mass AG's sole stated justification for his stay request is that he does not like the order issued by <

the Licensing nosid.' Dissatisfaction, however, does not i i

constitute adequate grounds for the " extraordinary equitable remedy" of a stay pending appeal.10 Rather, Mass AG aust meet the substantive and procedural requirements of 10 C.F.R.

y 5 2.788.- Thus he has the burden of: l (1) making "a strong showing" that he is "likely to .

prevail on the merits";

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' Mass AG characterizes those rulings as " literally absurd". Notice at 6 n.7. Elsewhere he refers to the Licensing

Board's proceedings'as "so damaged by illogic and unreason as to

! be meaningless", 14. at 10 n.13, and as error "so blatant, so l ingrained, so audacious, so contemptuous of norms of legal '

i reasoning that the process is-properly adjudged as in ' bad faith' and therefore a sham." Id. at 7 n.8. The Notice contains still other intemperate and wholly unprofessional attacks on the d Licensing Board, including the cryptic remark that the Board's J j

" statements are probably more fruitfully analyzed.from a nonlegal-

' instead of a legal perspective.". Id. at 10. Mass'AG8s pattern I of attacking:the Licensing Board, both in his pleadings and his public statements outside the proceeding,.seems to be growing 11n fervor and recklessness with each decision. adverse to him. The time has come, Licensees respectfully suggest, for this-Board to  !

.put a halt to Mass AG's increasingly abusive conduct. Egg 10 C.F.R. 52.713; Louisiana Power & Licht Comoany (Waterford Steam Electric Station, Unit 3), ALAB-121, 6-AEC 319 (1973);

Metrocolitan Edison Comoany (Three Mile Island Nuclear Station,  ;

' Unit No. 2) , ALAB-474, 7 NRC 746, 748-49 (1978).

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10 Public Service C'omoany of New Hamoshire (Seabrook L Station, Units 1 and 2), CLI-77-27, 6 NRC 715, 716 (1977).

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f (2) showing that he would be " irreparably injured" if a ,

stay is not granted; (3). demonstrating that others would not be harmed by a stay;,and (4) showing that "the public interest" favors a stay."

Mass AG's terse demand for a stay does not contain even an attempt to plead many of the requirements.of $2.788. On that ground alone, his motion should be denied.12 Even if he had pled all four stay factors, moreover, it is clear that-E he could not have made the requisite showing that they weighed in favor of his motion.

1. Irrecarable Iniury.

The Commission has made clear that "[t]he most significant l factor in deciding whether to grant a stay request is whether l the party requesting a stay has shown that it will be t irreparably injured unless a stay is granted."'3 The only F

" 10 C.F.R. $2.788(e); Alabama Power Co. (Joseph M. Farley.

Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC 795, 797 (1981).

12 Kansas Gas and Electric Comoany (Wolf Creek Generating Station, . Unit ' No.o 1) , ALAB-412, 5 NRC'1415, 1417 (1977) ("A stay application.which is . . . in substantial nonconformity with the requirements of (2.788) will be subject to summFsry denial with prejudice to its renewal in the absence of materially changed circumstances.");.gf. Texas Utilities Electric G2x (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-89-6, 29 NRC R 348, 353-(1989); Duke Power Co. (Perkins Nuclear Station, Units 1,.2,.and 3), ALAB-615, 12 NRC 350, 352-53 (1980).

13 Metronolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984), cuotina Westinchouse Electric Coro. (Exports to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980).

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argument by. Mass AG which could conceivably be construed ~as addressing this factor is his bare assertion that "a sham legal process is a form of irreparable injury."" This simply does not do the1 job for him. Even if_ Mass AG were correct.in arguing that the Licensing Board's handling of the various beach shelter sub-issues was flawed, Mass AG has not advanced even a single reason to believe that any_ error could j j

not be corrected on appeal to this Board, once the Licensing Board had' completed its proceedings on the entirety of the remanded issue.

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2. Likelihood of Success.

Mass AG does not'directly address the question'of his likelihood of success on the merits of his present purported appeal. Moreover,Jto the extent that his arguments as to the

. merits-of the Licensing Board's beach shelter rulings amount to anything more than personal attacks, conclusory allegations, and blanket incorporations of other-pleadings, Mass AG mainly disagrees with factual findings which clearly have'the requisite evidentiary support to withstand a stay ,

request.15 Looking-to each of the four "rulinga" with which Mass AG takes issue, it is clear that:

" Notice at 6 n. 7.

15 Toledo Edison Co. (Davis-Besse Nuclear Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 629 (1977).

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._ . ij (a)- There is ample record support, cited by.the Licensing Board itself, for that' Board's interpretation of the meaning of the term

" shelter-in-place" as used in the NHRERP."

(b) That same record supports the Licensing Board's l conclusion that, once Licensees rescinded their assertions of February 1, 1990, Intervenors' motion of February 6, wnich had been premised on those assertions, also. collapsed.'I Mass AG also fails to note the Licensing Board's independent, and clearly correct, ground for finding the February 6 motion to be moot -- 1232 that it had been superseded by Intervenors' February 28 motion." ,

- (c) The Licensing Board's finding that Intervenors' L

February 28 Motion was untimely has ample record 1 h

support." On safety significance, the I Licensing Board's holding, far from being h

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" Public Service Comnany of New Hamoshire-(Seabrook l Station, Units 1 and 2), LBP-90-12, 31 NRC __ (May 3, 1990), l

slip. op, at 34-38 (hereinafter cited as "LBP-90-12" and to the L slip opinion).

l II Id. at 28-30.

Id. at 30-31.

Id. at 34-38.

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"conclusory"," were expressly. grounded in this Board's holdings as to-the inefficacy of.

available shelter and=the unlikelihood that sheltering would be called ' for.21' Likewise, the Licensing Board was unquestionably correct in finding that the motion "has no supporting +

affidavit and'that defect alone would be lD.

L f atal . "22 Nor has Mass AG shown any error as to-

'the other facets of~the Board's holding on the.

I February 28 motion. .;

(d) Given that Mass AG is not-able to point to a single place where the' Licensing Board "has artificially limited" its further consideration J

of " Condition (2)",23 Mass AG has not even l.

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20 h Notice at 11.

1 21 LBP-90-12 at 39.

22 - Id.; 333 10 C.F.R. 52.734(b); Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2) , ALAB-915, 29 NRC  !

427, 432 (1989); Lena Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-89-1, 29 NRC 89, 93-94 (1989).

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Notice at 12.

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raised a,11tigable issue on that point,24 let alone show any-likelihood of success.

3. Harm to Others and Public Interggt.

Mass AG offers no argument, let alone any analysis, as to.

what effect a stay would have upon other parties or the general public. This is not surprising, given the irony of

~his present demand of a stay. For months' Mass AG has been i declaiming, in every adjudicatory and public forum he could conceive of, that the Licensing Board must take up the issues remanded in ALAB-924, and that until the Board did so then

" tens of thousands of citizens of New Hampshire and Massachusetts who frequent the heavily populated teabrook beach area [are put) at great risk in the event of a reactor accident."" Yet now Mass AG seeks to halt the very remand proceedings which he has claimed are essential to protect the public. In short, based on Mass AG's own allegations the l- -

y 24 Mass AG points to none, because the. Licensing Board has  ;

imposed no such limitations. In-its Notice of Prehearina .

conference (May 4, 1990), for example, the Board indicated that  !

it would address the sub-issue of shelter when " evacuation of beach visitors is not possible because of physical impediments to evacuation mush na weather and highway conditions." (Emphasis added.) Likewise, in LBP-90-12, at pages 45-53, the Board asks.

4 some quesrions and makes'some observatio.ns, but it does nothing to limit the litigation, to add anything new to the NHRERP, or to take out of the NHRERP anything it already contains.

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" Mass AG's " Application for Stay Pending Appeal in District of Columbia Circuit", Application No. A-745, to Chief Justice William H. Rehnquist (April 24, 1990), at 1-2.

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"public interest" factor would weigh aaninst'further. delay in l taking up the remand issues.

'II.- IF TEIS BOARD DEEMS TEAT AN APPEAL PROPERLY LIES AND BAS BEEN TAREN AT THIS TIME, IT SHOULD REQUIRE MASS AG TO FILE A PROPER BRIEF.

As is discussed in detail-in Section III infra, i l

Licensees do not believe that Mass AG may properly notice for- ]

appeal at this time (or, as to some of the issues, ever) the ,

' issues raised'in the Notice. Assuming:arauendo that the i

< Notice were proper, then pursuant to 10 C.F.R. $2.762 Mass AG '

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would be required, in the ordinary course, to file an  !

1 appellate brief which:

(1) " clearly identif[ies) the errors of fact or law that V  ;

[ are the. subject of the appeal;"26 l .(2) "[fjor each issue appealed", cites to'"the precise portion of the-record relied upon in support of.the assertion of error;"27 (3) explains in detail, beyond mere incorporation of pleadingsLrejected below, Ehy each challenged ruling i

was allegedly erroneous;2s l =.

26 10 C.F.R.' . E 2. 7 62 (d) (1) . j .

27 Id. .

28 E g., Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 378 (1985);

. Cleveland Electric Illuminatina Co. (Perry Naclear Power Plant, Units 1 and 2),-ALAB-841, 24 NRC 64, 69 (195$); , Carolina Power &

Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 547 (1986).

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'contains a statement of the case and relevant

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procedural history;" and' (5) if the brief exceeds 10 pages, contains a table of contents and table of authorities." 1 These requirements for appellate briefs are not sere

-formalities. Rather, they serve two distinct and very important purposes. ,

We have observed that briefs are necessary to " flesh out" the-bare bones of the exceptions, not'only to give (the Appeal'Uoard) sufficient information to' evaluate the l

basis of objections to the decision below, but also to-p provide an opponent with a fair opportunity to come to l grips with the appellant's arguments and. attempt to rebut.

them.- The absence of a brief not only makes'[the Appeal Board's) task difficult but, by not disclosing the authorities and evidence on which the appellant's case

• L rests, it I appellees.girtually precludes an-intelligent response by Rather than file such a brief, however, Mass AG asks l i

'this Board to accept the Notice and the three superseded pleadings attached thereto "as Intervenors' brief and 3 argument on those specific claims of error in LBP-90-12

. identified , [t]herein. "32 In so doing, Mass AG implicitly

." Etg., Public Service Electric & Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769 (1977);

Public Service Comoany of-Oklahoma-(Black Fox Station, Units 1 and 2), ALAB-388, 5 NRC 640 (1977).

30 10 C.F.R. 52.762(d).

31 Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 315 (1978).

32 Notice at 12-13.

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4 asks the Board.to waive all of the brief requirements cited abovej instead forcing the Board and-the parties to piece Mass AG's arguments together from four or more pleadings,33 most of which were written months ago for other purposes.

Absent a claim of prejudice from another party, the Board presumably would have discretion as to whether to waive the various requirements and dispense-with a brief.

However, Licensees respectfully suggest that all concerned would benefit -- especially in light of Mass AG's suggestion that he-intends to brief still "other rulings" as a result of LBP-90-12" --' from Mass AG being required to file a single, comprehensive, and procedurally complete brief.

l III. LICENSEES MOVE TO STRIKE ALL ASPECTS OF MA88 AG'8 NOTICE OF APPEAL.

Mass AG's' purported notice of appeal should be struck in its1 entirety. .The'hodge-podge of issues and sub-issues which L.

1 he seeks to appeal do not constitute a major segment of the overall case, and.accordingly his appeal of them (or at ,

l-least, of those'he'would ever have-standing to appeal) is l

33 -In addition to the Notice and the three pleadings l

l' attached thereto, Mass AG also purports to incorporate by reference arguments from 12 pages of a pleading filed with the Commission on December 1, 1989 (Notice at 3 n.4 and 4 n.5) as well as unspecified portions of another brief filed with this In lieu of a brief, 3

Board on April 27,-1990 (Notice at 3 n. 4).

therefore,. Mass'AG asks the Board and parties to " follow the dots" in his footnotes to the Notice, jumping back and forth between five separate additional pleadings to try to sketch out what his present appellate arguments may be.

• Id. at 13 n. 16.

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m premature. To be sure, the portion of LBP-90-12 which accepted SAPL's voluntary withdrawal and dismissed SAPL-from t

the proceeding la presently appealable, but only by SAPL;-

L Mass AG cannot notice or pursue the appeal on SAPL's behalf. J l

Finally, to the extent that Mass AG's pleading could be construed to have buried within it an unlabelled and unarticulated request for directed certification of certain beach shelter sub-issues, that request should be denied.

A. Controlling Principles of NRC Appellate Practice. ,

It is useful, at the outset, to review the controlling agency law as to the three questions which-are dispositive of )

Mass AG's notice: (1) finality for purposes of review; (2) standing to appeal; and (3) the requirements for directed certification.-

1. Finality for Purcoses of Intra-Aconcy Anneal.

It is well settled that The test of " finality" for appeal purposes before the agency (as in the courts) is essential ~1y a practical one. As a general matter, a licensing board's. action is final for appellate purposes where it either disposes of-at least a major. segment of the case or terminutes a party's right to j participate; rglings which do neither are l

interlocutory The latter test, termination of a party's participation, is self-explanatory. The former test, however, as to what 35 Toledo Edison Co. (Davis-Besse Nuclear Power Station),

ALAB-300, 2 NRC 752, 758 (1975).

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constitutes a " major segment of the case", has been repeatedly examined and refined in the course of these very proceedings. For example, this Board recently held that the-remanded issue concerning the adequacy of the siren system in:

the Massachusetts EPZ did D21 constitute a major segment, but

.rather was just one of many pending emergency planning

• issues." A few months later, the other appeal board sitting in this case concluded that Intervenors' proffered low-power-testing contentions did not constitute a major segment of the case .37 And previously, this Board concluded that dismissal of two of~only four pending issues in the low-power licensing proceeding did constitute a major segment of that proceeding, especially since those issues had "nothing whatever to do with any other matter still pending below.""

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2. Standina to Acceal.

NRC practice now clearly limits an intervenor to appealing only those " issues which the intervenor-appellant (itself}

placed in controversy or sought to place in controversy in l l

l M Memorandum and Order.(August 1, 1989); &as also Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-917, 29 NRC 465 (1989)~(holding appeal of returning commuter ETE sub-issues to be premature). s 37 Memorandum Order (November 14, 1989). The Board then went on to observe, however, that this tentative conclusion had been mooted by supervening events.

" Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632, 637 (1988).

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the-proceeding."3' :This rule builds upon, and is the-logical culmination of, the recent trend in agency case law to tho'

.effect that "whether an intervanor has the right to pursue a particular issue on appeal-is a function of the level of  ;

interest expressed by the'intervenor in such issue throughout the course of the proceeding." If one intervenor does not press an issue at tho' hearing level, leaving it for a'second-intervenor to pursue, then.the first intervenor runs the risk

-that the second will withdraw the issue, and/or withdraw from  ;

the proceeding altogether.

This standing rule applies to all intervenors, including governmental intervenors participating pursuant to 10 C.F.R. -

f 3' 10'C.F.R. 5 2.762 (d) (1) , as amended effective September 11, 1989; gag 54 Fed. Reg. 33168,.33182 (August 11,-1989). The amendments enacted therein do not apply to proceedings initiated prior to September 11, 1989, exceot to the extent that those amendments codify existing NRC practice. 54 Fed. Reg. at 33179. '

'O Philadelchia Electric Co. (Limerick Generating Station,

-Units 1 and 2), ALAB-845, 24 NRC 220, 253 (1986) ; ERR A182 Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant) , ALAB-837, 23 NRC 525, 542-43 n.58 (1986); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-583, 11 NRC 447 (1980); 54 Fed. Reg. at 33178.

'l Houston Lichtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 382-83 (1985); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-88-12, 28-NRC 605 (1988), aff'd on this coint sub nom.

Citizens for Fair Utility Reculation v. NRC, 898 F.2d 51, 55 (5th Cir. 1990); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642 (1977).

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5 2. 715 (c) .42 While 52.715(c) participants are accorded special treatment at the initial intervention stage, once -

into the case they are bound by the same requirements as any other party.'3 Nor may the rule be evaded by the simple expedient of claiming to appeal "on behalf of" another intervenor; a party to NRC proceedings only has standing to argue its own ,,

grievances, and may not unilaterally act to speak'for or bind another party." A party which has not previously pressed an, '

L issue may not suddenly step in and " pinch hit" for a 42 The Commission expressly rejected the suggestion of making an exception for " interested states". 54 Fed. Reg. at 33178. ,

'3 E g., Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-76-32, 4 NRC 293, 299 (1976); Public Service Comnany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-25, 6 NRC 535, 537 n.1 (1977); Gulf States Utilities Co. _

(River Bend Station, Units 1 and 2) , ALAB-317, 3 NRC 175, 180 n.7 t

(1976).

" Egg Carolina Power and Licht Co. (Shearon Harris Nuclear ,

Power Plant) , ALAB-837, 23 NRC 525, 542-43 n.58 (1986); Pucet Sound-Power and Licht comoany (Skagit Nuclear Power Project,

. Units 1 and 2), ALAB-556, 10 NRC 30, 33-(1979); Public Service ,

comnany'of New Hameshire (Seabrook Station, Units 1.and 2), LBP-86-34, 24 NRC 549, 550 n.1 (1986).

Likewise the rule cannot be avoided by the tactic of suddenly-announcing, on remand,.an interest in an issue.never 4 previously pursued by that party. " Parties may not dart in and  :

out of proceedings on their own terms and at their own convenience . . . . " Consumer Powers Co. (Midland Plant, Units 1 ar.d 2), ALAB-691, 16 NRC 897, 907 (1982); gas also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (1975); Boston Edison Co.

(Pilgrim Nuclear Generating Station, Unit 2), LBP-76-7, 3 NRC 156 (1976).

muass.wa j

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.. j i

4 withdrawing party that had raised the issue. As the Court of l Appeals observed two decades ago, "(w)e do not find in statute or case law any ground for accepting the premise that proceedings before administrative agencies are to be q constituted as endurance contests modeled after relay races in which the baton.of proceeding is passed on successively )

from one legally exhausted contestant to a newly arriving j legal stranger."'S j

3. Remuirements for Directed Certification.

The case law of this agency emphasizes that directed certification of an interlocutory licensing board ruling is an extraordinary step, "to be resorted to only in

' exceptional circumstances',"" and to be used "most ,

sparingly".'I As one appeal board has observed,

" interlocutory appellate review of licensing board orders is a disfavored and will be undertaken as a discretionary matter only in the most compelling circumstances."'8 i

45 Easton Utilities comm'n v. AEC, 424 F.2d 847, 852 (D.C. 1 Cir. 1970).

" consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-382, 5 NRC 603, 606 (1977).

'7 Pacific Gas & Electric co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-514, 8 NRC 697, 698 (1978).

48 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, 383 (1983)..

l m aus.ws i I

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i 6 l Previously in the Seabrook proceeding, this Board observed that "at the very minimum, a party (seeking directed certification) must establish that a referral would have been proport iAa., that, failing a certification, the public )

interest will suffer or unusual delay or expense will be encountered." The standard applied by this and other boards has been the one articulated in the Marble Hill  !

proceedings:

Almost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened a party 1 adversely affected by it with immediate and serious i I

irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) f affected the basic structur ,of the proceeding in a j pervasive or unusual manner In the same decision, this Board also provided guidance as to what constitutes a ruling which " affect (s) the basic q structure of the proceeding in a pervasive or unusual P

manner", holding that a licencing board ruling as to the scope of its jurisdiction vis-a-vis another licensing board ,

had that effect." on the other hand, it is clearly established that primarily factual rulings are not

Public Service Comnany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483 (1975).

50 Public Service Comeany of New Hameshire (Seabrook Station, Units 1 and 2) , ALAB-916, 29 NRC 434, 436 (1989),

uuotina Public Service comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).

" ALAB-916, supra, at 437.  ;

I JFTAP M S.Na . - - ._ . _ - - . _ _ - - _ _ _ _ _ _ _ _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ - - _ _ - _ .

m I

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.- I appropriate for directed certification under the Marble Hill l test.38 l Finally, it should be noted that a request for directed certification is a serious step, not one to be buried unlabeled in the interstices of other pleadings. Thus it has 1

been held that a motion for directed certification should l comply with the procedural requirements for an appellate

~

brief, and that a request which does not precisely identify, with record citation, the ruling challenged will be rejected out of hand.33 l

B. The Defects in Mass AG's Notice.

Applying these principles to Mass AG's Notice, it is clear i i- that his purported notice of appeal should be struck in its entirety. The only portion of the Licensing Board's decision L presently appealable as of right is the section which accepts SAPL's voluntary withdrawal and dismisses SAPL from the proceedings.54 That ruling, however, is only appealable by  !

SAPL itself, since only SAPL has standing to address the question of its own participation. Mass AG's attempt to appeal "on behalf of" SAPL, by means of a pleading which most 52 offshore Power Systems (Floating Nuclear Power Plants),

ALAB-517, 9 NRC 8, 12 (1979).

53 Houston Lichtina & Power Co. (Allens Creek Nuclear '

Generating Station, Unit No. 1) , ALAB-630, 13 NRC 84, 85 & n.2 (1981). )

" LBP-90-12 at 5.

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• ---=*--Ama - - _ _ _ _. _ _ _ _ _ _ _ _ _ _ ,,____ ,_ , _ , ,

'4 4

pointedly is not signed by SAPL,55 would be unavailing in any case, under the settled law discu's sed in Section III.A.2. >

above. In this case, however, it is doubly inappropriate for  ;

Mass AG to purport to speak for SAPL, since the Licensing Board's ruling was prompted by SAPL's own statement that it had nothing more to say.

Turning to the specific rulings which Mass AG seeks to appeal, it is clear that none are presently ripe for appellate review, and that as to at least several of them Mass AG again lacks standing.

1. LOAs for Evacuatina Teachers, j l Mass AG apparently asserts that this issue has achieved finality for appellate purposes.5' He is mistaken. Teacher  !

LOAs are just one of a number of emergency planning' issues -

[

either presently before the Licensing Board on remand or else potentially before it after this Board's decision on the SPMC I

and remaining NHRERP issues presently under review. Thus,

+

like the remanded sirens issue,57 it does not constitute a v 1_ '

L najor segment of the case. Moreover, even if the issue were now final, Mass AG would have no standing to seek review of i it, since it was SAPL (and Town of Hampton, who is not even 1

55 EAR Notice at 13.

" Notice at 3.

57 ERA suora at note 36 and accompanying text.

! nta us.us O

nominally a proponent of the Notice) who had litigated the issue previously before the Licen~ing s Board.58

2. New Hamethire Seacial Needs Survey.

This issue, too, is but one of a number of present or potential emergency planning romand issues, and hence does not constitute a major segment of the case. The contrast with the situation in ALAB-894 (the only case on finality cited anywhere in Mass AG's brief) is stark. ' In ALAB-894, the Board found that two of only four remaining issues relating to low-power licensing, which two issues moreover were totally unrelated to any of the others, constituted a major segment of that proceeding.59 In this full-power licensing proceeding, on the other hand, literally scores of emergency planning issues are still in play, of which the New Hampshire special needs survey is but one.

Here again, moreover, Mass AG seeks to appeal an issue raised and presented only by SAPL, a request he clearly has no standing to make."

3. ETEs for ALS Patients.

Despite the fact that this issue has been set for consideration at the June 5 pre-hearing conference, Mass AG sa Esa supra at notes 40-41, 44-45 and accompanying text.

59 Egg suora at note 38 and accompanying text.

" Egg supra at notes 40-41, 44-45 and accompanying text.

61 Notice of Prehearina Conference (May 4, 1990) at 1.

mArus.yn - . - _ i

)

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1 contends that one " discrete subissue" within it is now final for appellate purposes." Not so. One sub-part of one issue amidst numerous emergency planning issues simply does not i amount to a major segment of the full-power licensing case.

Reach Shelter Imelementina Procedures.

4.

Here again, Mass AG seeks immediate review as to various i sub-issues of an issue that has been set for hearing. As to ,

the four specific sub-issues which Mass AG raises, it is unclear which he contends are " final" and which interlocutory." Moreover, it is unclear whether Mass AG is seeking directed certification of some of the sub-issues, and, if so, which ones." Despite this opacity, however, it ,

l is clear that present appellate review of these sub-issues is unwarranted. e l

Clearly Mass AG's sub-issues do not amount to a " major l segment of the case", for the reasons discussed above. Nor has Mass AG shown (assuming arauendo that he has properly pled) that directed certification is warranted. As discussed in Section I.B.1 above, Mass AG has not shown, and cannot show, that the Board's rulings and statements on those sub- Y issues threaten him with "immediate and serious irreparable impact which, as a practical matter, could not be alleviated l

" Notice at 5 n.6. i

" -Id. at 5.

(

" Id. at 5-6 and n.7.

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by later appeal."65 Nor has Mass AG shown, or can he show, that the filings have "affected the basic structure of the l proceeding in a pervasive and unusual manner" in the sense meant by ALAB-916." To the contrary, three of the four sub-1 1

issues raised by Mass AG~- "' Actual sheltering' vs.

' Sheltering-in-place'",'# "Intervenors' February 6 Motion to Roopen"," and "Intervenors' February 28 Motion to Roopen"" - 1 1

- all turn on the Licensing Board's factual determination of the meaning of the term " shelter-in-place" as used in the 1

NHRERP." Such factual determinations are not appropriate. l 1

(

L for directed certification.7' And the last "sub-issue" --

l

" Interlocutory Rulings on Sheltering for Condition (2)" -- ,

l is, as discussed in part I.B.2 above, not an issue at all," I l

and so there is nothing to appeal in any case.

1.

ERA AMElk at note 50 and accompanying text.

65 Id.

'I Notice at 6.

Id. at 9.

14 i

" LBP-90-12 at 34-38.

1' l

II ERA guRIa at note 52 and accompanying text.

" ERA supra at note 24 and accompanying text. Moreover, Mass AG's failure to cite to the specific ruling he contests is fatal to.his request. Egg supra at note 53 and accompanying text.

m a u s.wn - .. .-. . .

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CONCLUSION 1 1

For the reasons stated above', the Appeal' Board should l deny Mass AG's motion for a stay and strike his notice of appeal. If the Board finds that Mass AG may properly appeal ,

some issues at this time, then the Board should axercise its discretion to require him to file a proper brief as to those R issues, in conformance with 10 C.F.R. $2.762.

Respectfully submitted, >

i

' 'sl $ Yk Th6 mas G. Dignan, Jr.

George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Ropes & Gray One International Place l

i Boston, MA 02110-2624 i

(617) 951-7000 Counsel for Licensees 1

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l ntaus.wu . - , -.

i I'0LKl.iED l

• U$NRC 1

CERTIFICATE OF SERVICE 90 EY 18 P3 :58 l I, Jef frey P. Trout, one ol' the attorneys for the l Licensees heroin, hereby certify that on May 17, 1990 : 1 t made 4 CRE TAiiY service of the within document by depositing copies theietifu 'il 4viti

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with Federal Express, prepaid, for delivery to (or, where BRANCH indicated, by depositing in the United States mail, first class postage paid, addressed to):

Alan S. Rosenthal, Chairman Mr. Howard A. Wilber i Atomic Safety and Licensing Atomic Safety and Licensing l Appeal Panel Appeal Panel l U.S. Nuclear Regulatory U.S. Nuclear Regulatory l Commission Commission l Fifth Floor Fifth Floor 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814  ;

I Mr. Thomas S. Moore Mr. Richard R. Donovan Atomic Safety and Licensing Federal Emergency Management l Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.

Fifth Floor Bothell, Washington 98021-9796 '

4350 East-West Highway Bethesda, MD 20814 Administrative Judge Ivan W. H. Joseph Flynn, Esquire l

r 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 Administrative Judge Richard F. Gary W. Holmes, Esquire Cole Holmes & Ells Atomic Safety and Licensing Boarcl 47 Winnacunnet Road U.S. Nuclear Regulatory Commission Hampton, NH 03842 East. West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A. Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 c______.__________________. _- - . . . _ . . _ _ . . -. --. -

R.

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George Dana Bisbee, Esquire Robert R. Pierce, Esquire Associate Attorney General Atomic Safety and Licensing Office of the Attorney General Board 25 Capitol Street U.S. Nuclear Regulatory Concord, NH 03301-6397 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Mitzi A. Young, Esquire Diane curran, Esqu$re Edwin J. Reis, Esquire Andrea C. Ferster, Esquire Office of the General Counsel Harmon, Curran & Tousley Uas. Nuclear Regulatory Commission Suite 430 One White Flint North, 15th Fl. 2001 S Street, N.W.

11555 Rockville Pike Washington, DC 20009 Rockville, MD 20852 Adjudicatory File Robert A. Backus, Esquire Atomic Safety and Licensing 116 Lowell Street Board Panel Docket (2 copies) P.O. Box 516 L

U.S. Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building 4350 East West Highway l

Bethesda, MD 20814 .

• Atomic Safety and Licensing Suzanne P. Egan, City Solicitor I Appeal Panel Lagoulis, Hill-Whilton &

L U.S. Nuclear Regulatory Rotondi 79 State Street L Commission Mail Stop EWW-529 Newburyport, MA 01950 Washington, DC 20555 i

Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General  ;

Department of the Attorney Department of the Attorney  !

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

Boston, MA 02108 1

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

25 Maplewood Avenue 101 Arch Street P.O. Box 360 Boston, MA 02110 Portsmouth, NH 03801 l R. Scott Hill-Whilton, Esquire Ashod N. Amirian, Esquire Lagoulis, Hill-Whilton & 145 South Main Street Rotondi' P.O. Box 38

! 79 State Street Bradford, MA 01835 Newburyport, MA 01950

l

• Senator Gordon J. Humphrey *banator Gordon J. Humphrey ,

U.S. Senate One Eagle Square, Suite S07 '

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

G. Paul Bollwerk, III, Chairman George Iverson, Director j e

Atomic Safety and Licensing N.H. Office of Emergency .

Appeal Panel Management U.S. Nuclear Regulatory Commission State House Office Park South Fifth Floor 107 Pleasant Street '

4350 East-West Highway Concord, NH 03301 Bethesda, MD 20814 ,

Mr. Jac.k Dolan Federal Emergency Management Agency Region I J.W. McCormack Post Office &

Courthouse Building, Room 442 i Boston, MA 02109

}{

Jeffrey P. Trout

(*= Ordinary U.S. First Class Mail.)

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