ML20043C356
| ML20043C356 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/25/1990 |
| From: | Chan E, Lisa Clark, Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#290-10400 LBP-90-12, OL, NUDOCS 9006050098 | |
| Download: ML20043C356 (22) | |
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$g my 29 A9:00 NUCLEAR REGULATORY COMMISSION BIf,QRETHEATOMICSAFETYANDLICENSINGAPPNN$bbkh wm-In the Matter of.
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, at A1
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Off-site Emergency Planning
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-(Seabrook Station,
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Units 1 and 2)
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NRC'S MOTION TO DISMISS NOTICES OF APPEAL FROM LBP-90-12 Edwin J. Reis, Deputy Assistant General Counsel for Reactor Licensing May 25, 1990 t
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD.
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In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE-COMPANY OF
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_ 50-444 OL NEW MAMPSHIRE, g_t 11
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Off-site Emergency Planning-
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(Seabrook Station,
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Units 1 and 2)
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NRC'S MOTION TO DISMISS NOTICES OF APPEAL FROM LBP-90-12 L
Edwin J. Reis, Deputy Assistant General Counsel for Reactor Licensing j
i May 25, 1990 t -.
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i INDEX k
Introduction 1
Discussion 2
- 1..
The Licensing Board correctly Dismissed SAPL From The Proceeding 3
2 i
2.
' Appeal Will Not Lie From SAPL'S Contentions Involving Letters of Agreement With Teachers and The Adequacy of The 1986 Special Needs' Survey As SAPL Has Been Dismissed From The Proceeding 6
3.
The-Appeal of a Subissue Concerning Evacuation Times Estimates (ETEs) for Advanced Life Support (ALS) Patients Is Premature.
8 Conclusion 13-1 I
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'f 11 TABLE OF AUTHORITIES CASES Carolina Power and Licht Co. (Shearon Harris Nuclear Plant), ALAB-837, 23 NRC 525 (1986) 7 1
gleveland Electric 111uminatina Co. (Perry Nuclear Power Plant), Units 1 and 2),
ALAB-706, 16 NRC 1105 (1982) 11 Cleveland Electric Illuminatino Co. (Perry
-Nuclear Power Plant), Units 1 and 2),
(.
ALAB-675, 15 NRC 1114 (1982) 11 C9Dnplidated Edison Co. of New York (Indian Point Station, Unit 2), ALAB-369, 5 NRC 129 (1977) 6 Consumers Power Co. (Midland Plant,. Units 1 and 2),
ALAB-541, 9 NRC 436 (1979) 10, 11
. Consumers Power Co. (Midland Plant, Units 1 and 2),
1 ALAB-634, 13 NRC 96 (1981) 11 Duke Power Co (Catawba Nuclear Station, x
4 Units 1 and 2), ALAB-687, 16 NRC 460 (1982) 10, 13 Duke Power Co._ (Perkins Nuclear Station, Units 1, 2 & 3),
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.ALAB-433, 6 NRC 469 (1977) 6, 10 Georcia Power Co. (Vogtle Electric Generating.
Station, Units 1 and 2), ALAB-851, 24 NRC 529 (1986) 4 Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360 (1985) 6, 7, 8 Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, (1984)
.5 Lc Northern 7:yttiana Public Service Co. (Bailly Generating Station, Nuclear - 1), ALAB-224, 8 AEC 244 (1975) 4 Northern States Power Co. (Prairie Island Nuclear Generating Station, Units 1 and 2), ALAB-288, 2 NRC 390 (1975) 4 k
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I Philadalchia Electric Co. (Linerick Generating Station, Units 1 and 2), ALAB-924, 30 NRC 331 (1989) 8 Philadelohia-Electric Co. (Litorick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220 (1986)
.7-Eublic Service Co. of New Hamoshire (Seabrook station, Units 1 and 2), ALAB-917, 29 NRC 465 (1989) 7 Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632 (1988) 9 Epblic Service Comoany.gf New Hamoshire (Seabrook Station, Units 1 and-2),.ALAB-838, 23 NRC 585 (1986) 13 Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-731, 17 NRC 2073 (1983)
'9 Public Service comoany of New Hamoshire (Seabrook Station, Units 1 and-2), ALAB-488, 8 NRC 178 (1978) 6 t
E Eperto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976) 10 Texas Utilities Co. (Commanche Peak Steam Electric Station, Units 1 and 2), CLI-88-12, 28 BRC 505 (1988) 6, 7,
8 Toledo Edison Co. (Davis-Besse Nucles; lower
. Station), ALAB-300, 2 NRC 752 (1V.'5) 9 REGULATIONS 10 C.F.R. $ 2.718 (i) 10 10 C.F.R. $ 2.730(f) 9, 10 10 C.F.R. $ 2.760(a) 7 10 C.F.R. S 2.762(a) 6 g
10 C.F.R. $ 104(c)
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD s
In the Matter of-
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW MAMPSHIRE,.31 A1
)
Off-site Emergency Planning I
(Seabrook Station,
)
Units 1 and 2)
)
Y NRC STAFF'S MOTION TO DISMISS NOTICES OF APPEAL FROM LBP-90-12 s
INTRODUQILQH By Order of May 18, 1990, this Appeal Board directed the NRC,
Staff to file and serve its proposed motion to dismiss the May 11, 1990 Notice. of Appeal
(" Notice")
from LBP-90-12 filed by intervenors, Commonwealth of Massachusetts, the Seacoast Anti-Pollution League ( "Si.leL"), and New England Coalition on Nuclear Pollution ("Intervenors") by May 25, 1990.
SAPL separately filed a Notice of Appeal on May 14, 1990, from. that portion LBT 90-12
. granting SAPL leave to withdraw from the proceeding, which counsel for the Staff did not receive until after the Staff's pleading of May 18, 1990, was filed.
The NRC Staff generally supports the position articulated by
. Licensees in their May 17, 1990 response and motion to strike Intervenors' netice of appeal on all issues.
The Staff further moves to strike SAPL's separate Notice of Appeal on the ground that
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.the Licensing Board correctly granted leave to SAPL to withdraw f
.and dismissed I:APL from the proceeding.1 DISCUSSION 1.
-The Licensina Board Correctiv Dismissed SAPL Prom the
- Proceedina.
4, In LBP-90-12, at 5, the Licensing Board ruledt.
k First, as to SAPL's participation in the. proceeding
'before us, we note that its early notice to the Board was to the effect the.t it would not participate on any issue not related to licensing.
The effect of.the.
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-Commission's order of March 1 authorizing the license 4
was to foreclose the condition upon which SAPL would
?J have participated.
We therefore grant leave to SAPL to withdraw and dismiss SAPL from the ' proceeding before this Board.
[ Footnotes omitted) i The SAPL notice referred to.in the Licensing Board's opinion stated in pertinent part:
l' First, at no time har. SAPL indicated any intention to." abandon" the remanded issues.
All SAPL has indicated,.in its letter of January 19, is that, as one party to the litigation, it does not intend to participate in litigation on any issues that are unrelated to' licensing.
This Board has made clear both in LBP-89-32 and LBP-89-33, that it considers the remanded issues are irrelevant to j
l'In the, ordinary course the Staff would have responded to SAPL's~ appeal of its dismissal from the proceeding, rather than moving to dismiss the appeal.
However, here the issue of whether
,s SAPL is a party to this proceeding underlies, to a large extent, L
- the question of whether an appeal lies on the dismissal of the contentions, on the need for letters of agreement from school teachers and the validity of the 1986 special need survey,,which contentions SAPL alone among the appellants sponsored.
Therefore 4 #
this issue is, in the view of the Staff, best dealt with in the context of a motion to dismiss the Notices of Appeal, rather in later. briefs on the appeals themselves.
It is noted that the
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Intervenors - are not prejudiced by this course, since under the terms of the Appeal Board's Order of May 18, 1990, provision is l
made for a response by Intervanors to the Staff's motion to dismiss the. appeal.
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licensing because, in the Board's view, none are
" safety significant". Until that determination is changed by-the Board, or reversed or vacated by higher authority, SAPL has no reason to participate in further proceedings befor l
Board, as its January 19 letter made clear.g the That January 19, 1990 letter referred to in SAPL's pleading stated L.
in full:
Three days ago I received the Board's Memorandum and order of January 11, 1990, the purpose of which was "to provide to interested parties an opportunity to advise the Board on how to proceed in accordance with the directives of ALAB-924 and how they proposed to participate in the resolution f
i of the remanded issues."
l My first reaction was that'this order must be in I
jest.
Surely, the members of this Board could not expect SAPL to have the least interest whatsoever L
in any further proceedings before the Board given i
the fact that the Board has decided the issue in the case by directing the "immediate i
authorization" for a full power nuclear license.
l Perhaps the Board has forgotten that SAPL i
intervened in this proceeding to oppose the issuance of a nuclear license for Seabrook..I.did L<
not intervene in this proceeding for the sake of being in the proceeding and it has no intention of serving as an uncompe,nsated emergency planner for FEMA, NRC, or the New Hampshire Emergency l
Management Agency.
In case the Board has forgotten SAPL's position in this natter, we enclose a copy of SAPL's opening l
Statement.
SAPL's been, there is no " position remains what it has adequate" emergency plan for Seabrook, adequate emergency planning at Seabrook l'
may indeed not be feasible, anp therefore i
no nuclear license should be issued 2 Seacoast Anti-Pollution League's objections To Applicants' Motion cf January 26, 1990, dated February 1, 1990, at 1-2.
3 Letter of Robert a, Backus to Administrative Judges, dated January 19, 1990, attache; to SAPL's Notice of Appeal.
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i i l The Licensing Board rightly dismissed SAPL from the proceeding for refusing to participate on the very remanded issues now l
involved in this appeal.
The situation here is much like the situation in Georaia Power Co. (Vogtle Electric Generating Station, Units 1 and 2), ALAB-851, 24 NRC 529, 530-31 (1986) where an intervenor refused to participate in a
proceeding on its 1
contentions before a Licensing Board and later attempted to appeal.
The Appeal Board there stated:
Our precedent maken clear that "[pjarties may not I
dart in and out of proceedings on their own terms and at their convennence and still expect to enjoy the benefits of full participation without the responsibilities."
Consumers Power Co.(Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, :307 (1982),
review declined, CLI-83-2, 17 NRC 69 (1983).
Cf. Philadelchia Electric Co. (Limerick j.-
Generating Station, Units 1 and 2), ALAB-845, 24 L
NRC 220, 252- (1986).
Once a party effectively i'
withdraws frem a proceeding, its appeal rights are I
waived.
Midland, 16 NRC at 907.
Although, the refusal of the intervenor to participate in the L
y.qgtig case occurred at the start of a hearing and SAPL's refussi to participate was at the start of a temanded proceeding, the principle is the same - a party's voluntary refusal to participate acted to " extinguish its appeal rights." See also Northern Indiana I
Public Service Co. (Bailly Generating Station, Nuclear - 1), ALAB-224, 8 AEC 244, 251 (1975).
Similarly, in Northern States Power
- 29. (Prairie Island Nuclear Generating Station, Units 1 and 2),
ALAB-288, 2 NRC 390, 393 (1975), it was stated that a party to "an l'
NRC adjudicatory proceeding does not carry with it a license to step into and out of the consideration of a particular issue at l
Li
k will"; an intervenor was foreclosed from further appearing on issues where he had not fulfilled Licensing Board obligations.
Here, SAPL seeks to choose where and when it will take part in the remanded issues.
It cannot do so, and was rightly dismissed.from the proceeding.
In Long_,IslaDd Lichtina co. (Shoreham Nuclerr Power Station, Unit 1),
A1AB-788, 20 NRC 1102, 1178-80 (1984),
cited with accroval, 14., CLI-90-2, 29 NRC 211, 225 (1989), the Appeal Board affirmed the dismissal of intervenors' contentions for a refusal l
l to-take part in proceedings below under procedures prescribed by the Licensing Board.
SAPL's refusal to litigate the remanded issues below, similarly forecloses it from appealing any matter concerning those issues.'
SAPL, in its Notice of Appeal of May 14, 1990, states it is appealing "that portion of LBP-90-12 that purports to " grant" SAPL's motion to withdraw.
(SAPL never filed a motion to withdraw.)"
However, whether or not SAPL filed such a motion is I
immaterial.
The Licensing Board did not grant a motion to withdraw, but dismissed SAPL for refusing to participate in the remanded proceeding.
That action was proper under the precedent
' It is noted that in the "Scacoast Anti-Pollution League's l
Objection To Applicants' Motion of January 26, 1990",
dated j
February 1, 1990, it is claimed that SAPL has not " abandoned" the remanded issues.
However, it also stated that it "does not intend to participate" on such issues because they had been determined to be " irrelevant to licensing."
At 1-2.
SAPL and its issues were rightly dismissed from the proceeding.
I
-f. '
e cited above and should be affirmed.8 SAPL is not a party to this l
proceeding
- and, therefore, its Notice of Appeal should be dismissed.
Ang 10 C.F.R. $ 2.762(a); Duke Power Co.
(Perkins Nuclear
- Station, Units 1, 2, and 3),
ALAB-433, 6 NRC 4 69, 470 (1977); consolidated Edison Co. of New York (Indian Point Station, Unit 2), ALAB-369, 5 NRC 129 (1977).
2.
Appeal Will Not-Lie From SAPL'S Contentions Involving Letters of Agreement With Teachers and The Adequacy of The 1986 Special ligeds Survey As SAPL Has Been Dismissed From The Proceedina Where one sponsoring a contention is no longer party to a proceeding, the contentions sponsored by that party are no longer in litigation and should be dismissed.
Houston Lichtina and Power C.g. (South Texsts Project, Units 1 and 2), ALAB-799, 21 NRC 360, 382 (1985); 3.ga_Ala.g Texas Utilities Co. (Comanche Peak Steam Electric Station, Units 1 and'2), CLI-88-12, 28 NRC 605, 609 (1988), aff'd P
sub nom.
Citizens for Fair Utility Roaulation v. NRC, 898 F.2d 51, 1
5 It is noted that this is not SAPL's first f ailure to perform its obligations as a party in the proceeding.
SAPL previously failed to file a requested memoranda and to attend a prehearing conference.- The Appeal Board there stated:
Because on all other occasions SAPL/7udubon have edequately discharged their responsibilities as parties, we are disinclined to dismiss them from the proceeding on the basis of this one lapse.
We
- expect, however, that in future l
SAPL/Audubon will not take it upon themselves to make unilateral decisions regarding the need to fulfill-obligations imposed by-directives of this Board.
i Public Service Co. of New Hampshire (Seabrook Station, Units 1 L
and 2), ALAB-488, 8 NRC 187, 191 (1978).
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~7-55 (5th Cir. 1990) (holding that an 'intervenor has no right to continue the litigation of contentions sponsored by a former intervenor without showing cause for the late raising those contentions). This rule is particularly apt in operating licensing proceedings where litigation is, in general,. limited to " matters
)
in controversy among the parties".
10 C.F.R. $$ 104 (c), 2.760(a);
Houston Lichtina and Power co., sucra.
Other intervenors cannot take up.and presa the contentions of parties who are no longer in the proceeding.
I m s Utilities co.
suDra; Carolina Power,_hnd Licht Co. (Shenron Harrie Nuclear Plant),
ALAB-837, 23 NRC 525, 542-543
- n. 58 (1986).
"(Whether) an intervenor has the right to pursue a particular issue on nppeal is
-a function of the level of interest expressed by the intervenor in such issue throughout the course of the proceeding." Philadelnhia l
Electric co. (Limerick Generating Station, Units 1 and 2), ALAB-l 845, 24 NRC 220, 253 (1986).
As we have detailed, SAPL was correctly dismissed from the Proceeding.
Thus, the contentions it sponsored on letters of agreements for teachers and the 1986 special needs survey are no longer in litigation and the appeal of those issues should be dismissed.'
SAPL (and ths Town of Hampton which has not appealed) raised y.-
the sub-)ect contentions on letters of agreement with teachers and
' The Licensing Board in part, dismissed these contentions because SAPL had been dismissed and they were no longer in litigation.
LBP-90-12, at 8.
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the 1986 special needs survey.
It was principally SAPL and the l
Tovn of Hampton who litigated these matters below and it was SAPL who appealed the rulings on these contentions which led to the remand.?
As'we have detailed, SAPL was correctly dismissed-from thist proceeding.
The Town of Hampton has not appealed from LBP-90-12.
Thus, the contentions on letters of agreement with teachers t
and the 1986 special needs survey are no longer in litigation, and they were correctly dismissed by the Licensing Board.
LBP-90-12, at 8.
Egg Housten Lichtino and Power Co.,
supra; Texas Utiliting gg., supra.s t
3.
The Appeal of a Subissue Concerning Evacuation Times Estimates
_(ETEs) for Advanced Life Sueport (ALS) Patients Is Premature.
The Intervenors' appeal in regard to an aspect of the remanded proceeding involving evacuation time estimates [ETEs) for advanced life support ( ALS) patients sNuld be dismissed as premature.
The Licensing Board in LBP-90-12 provided for.further ptoceedings on l
the effect of the time needed to prepare ALS patients for-evacuation.
Slip op.
at 22-23.
The Board there rejected l-L 7 Egg ALAB-924, 30 NRC 331, 340-42, 345-48 (1989); see al_so 4
L SAPL Third Supplemental Petition Intervene, April 8,
1986; at 5;
[
Testimony of Pennington et al., ff Tr. 3945, passim (teachers panel sponsored by M.
Brock attorney for Town of Hampton); Town of Hampton's Brief, February 10,1989, at 36-42; SAPL Brief, March 21, n
L 1989, at 26-28; SAPL's Response To Applicants' Motion For Summary Disposition of SAPL Contentions 5,7, 14 and 17 and Affidavit of Frederick H. Anderson, Jr., June 9, 198ti.
8 -The contention involving'the 1986 needs survey should also be dismissed as moot.
These surveys are conducted annually.
LBF-90-12, at 12-13.
Further the surveys are only part of a broader effort of identifying the special needs population.
L3P-89-33 at 20-21.
The issue of whether a 1986 survey is adequate is no longer germane to this proceeding, p
1
Intervenors' argument that the observations in footnote 71 in ALAB-t 924, 30 NRC at 352, concerning the regulatory guidance in NUREG-j 0654 required a finding that the NHRERP is inadequate in the absence of individualized ETEs for special facilities.
2.d. at 23.
Intervenors seek appellate review of this interpretation. of
.I the footnote in AMB-924 on the claim that it is a
" final determination on one significant aspect" of the ramanded issue and t
meets ~the finality test in Public service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632, 636-37 (1988).
Notice at 5 n.
6.
However, that casa does not support Intervenors' argument as the case dealt with the final j
determination of entire contentions, unrelated to other issues still to be litigated.
The ruling on which appeal is sought is the interpretation.of a footnote in an Appeal Board decision and it is not a dreision on a discrete issue or contention.
Until, at least, all matters relating to the ETEs for ALS patients are decided, the 1
appeal is premature.
Et.t ALAB-894, 27 NRC at 637; see also Public L
Service Co..of New Hamoshire (Seabrook Station, Units 1 and 2),
L ALAB-917, 2 9 !G.'
465 (1989).
When a decision of a Licensing Board does not dispose of a
major segment of the case, at a minimum, it is interlocutory.
Pubile Service Co. of New Hamoshire (Seabrook Station, Units 1 and 1
2),
ALAB-731, 17 NRC 1073, 1074-75 (1983); Toledo Edison Co.
(Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 1.
(1975).
Under the Commisssion's regulations, interlocutory determinations are not appealable as a matter of right until the
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. Licensing Board renders a
- final, and therefore reviewable, l
decision.
Id. ; 10 C.F.R. $ 2.730(f).
For example, it has been held that a ruling which denies a motion to dismiss a proceeding cannot be appealed. - Duke Power Co. (Perkins Nuclear Station, Units 1, ' 2 & 3), ALAB-433, 6 NRC 469 (1977).
The Licensing Board's 1
interpretation of a footnote in ALAB-924 similarly fails the test for a final, appealable decision.
t Moreover, the Licensing Board's interpretation of ALAB-924 does not warrant interlocutory review by directed certification.
Although Intervenors ask only that this Appeal Board grant
" interlocutory review of those portions of LEP-90-12 not appealable as of right", Notice at 12, such a review may only be granted by directed certification under 10 C.F.R. $ 2.718(i). Consumers Power i
. Midland
- Plant, Units 1
and 2),
ALAB-541, 9 NRC 436,
(
-437 (1979).
In order to obtain certification under that provision, a party must, at a minimum, establish that a referral under 10 C.F.R. $ 2.730(f) would have been appropriate, LL., that review in necessary to prevent detriment to the public interest or unusual delay or expense.
Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976).
More specifically, the Appeal Board has said that the question of i
whether an interlocutory ruling should be reviewed on certification turns on whether failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or affect i
the basic structure of the proceeding in some pervasive or unusual manner.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
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AMB-687, 16 NRC 460, 464 (1982); (Consumtra Power Co.
(Midland Plant, Units 1 and 2), AMB-63 4, 13 NRC 96 (1981), modified on other arounds, CLI-83-19, 17 NRC 1041 (1982).
Intervenors have made no showing that the Licensing Board's ruling on the ALS/ETE subissue of the need for individualized ETEs for special facilities meets this test.
Directed certification, as well as appeal, of that issue must therefore be denied.
4.
Appeal of Subissues concerning Implementing Procedures For Sh,giterina The Beach Poculation Is Premature.
Intervenors' appeal from "subissues" of the beach population sheltering issue should also be dismissed as premature. S.ga Notice
. at 5.
The Intervenors recognize that there is no final ruling on the beach sheltering issues; however, they claim that because certain " interlocutory rulings.
. are so egregiously wrong" they may now seek-review.'
M.
The Licensing Board has set further proceedings on the sheltering issues (LBP-90-12, at 56), and appeal does not lie from the rulings on subissues.10 These rulings involve interpretation of the phrases
" shelter" and " shelter-in-place",
the rejection of motions to reopen on the sheltering issues, and interpretations of when there may be physical impediments to evacuation.
10 Intervenors, although speaking of " fairness" and "due process" ' do not delineate how any error they claim could not. be cured upon appeal after the " sheltering" proceedings are complete or that they suffer any additional burden but the noncognizable cost of taking part in proceedings.
In such a situation inter-
_ locutory review may not be sought.
Egg Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-706, 16 NRC 1754, 1758
- n. 7 (1982);
M.,
ALAB-675, 15 NRC 1105, 1114 (1982).
l
Intervenors have no right to appeal any of the Licensing I
Board's rulings on the sheltering issue at this time.
Under the criteria discussed above, the Board's determinations are all
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interlocutory.
Indeed, the Board's discussion of the sheltering
. question was made in the context of determining how the issues in the upcoming hearing wou13 be framed, not in a ruling disposing of any segment of the' case.
Aga LBp-90-12, slip op. at 28, 53-56.
I While the Board did rule against the Intervanors on their~ motions to reopen the record, it did not dispose of a major segment of the case in doing so.
On the contrary, the Board decided only a few of many subissues pertaining to beach sheltering.
In addition, as l
the Intervenors concede (Notice at 11), the Board's delineation of issues to be considered in the remand proceeding is manifestly not a final ruling.
Intervenors claim they moet standards for interlocutory review as the subject order will cause them irreparable harm er affect the proceeding in - a basic or pervasive way.
Notice at 6 n. 7.
However, as the Appeal Board ruled earlier in this proceeding:
We employ our directed certification authority only where a
licensing board ruling either threatens the party adversely affected by it with immediate and serious irreparable impact that, as i
a practical matter, could not be alleviated by a later appeal, or affects the basic structure of the proceeding in a pervasive or unusual manner.
Neither test ordinarily is satisfied where a licensing board simply admits or rejects particular issues for consideration in a case.
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s Public Service comeany of New Haneshire (Seabrook Station, Units 1 and 2), ALAB-838, 23 NRC 585, 592 (1986) (footnotes omitted).11 No basis is provided for the interlocutory review of sheMering-
"subissues" at this time.
CONCLUSION The Notice of Appeal should be dismissed. The issues involving letters of agreement with teachers and the validity of a 1986 special needs survey are no longer pending as SAPL was rightly f
dismissed from the proceeding upon announcing it would no longer participate in resolving-remanded issues, and the issues it sponsored are no longer in controversy.
The issues appealed involving ETE's for ALS patients and sheltering are subissues of issues yet to be adjudicated upon remand, and the appeal of such
. subissues is premature.
Thus all issues noted for appeal from LBP-90-12 are not appropriate for review at thi.s time and the Notices of Appeal should be dismissed.
Respectfully submitted, Edwin I. Reis Deputy Assistant General Counsel for Reactor Licensing 21 Further, the Appeal Board has the question of the proper
. scope of litigation of the sheltering issues before it by way of
+
the questions referred by the L:
asing Board in LBP-90-12, at 54-55, and the Appeal Board's determination to consider those questions.
Order May 18, 1990, at 2.
Thus there is no reason for the acceptance of an interlocutory appeal.
Egg Duke Power Co.
(Catawba Nuclear Power
- Station, Units 1 and 2),
ALAB-687, 16 NRC 465 (1983) (certified question is accepted for consideration where petition for review is denied).
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Elaine I. Chan Counsel for NRC Staff
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Lisa B. Clark Counsel for NRC Staff Dated in Rockville, Maryland this 25th day of May, 1990 6
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION'90 MAY 29 A9:01 BEFORE THE ATOMIC SAFETY AND LICENSING ADPEAL BOARD ;v DOCElilNG A Si WE
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In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW HAMPSHIRE, 11 Al.
)
Off-site Emergency Planning
)
(Seabrook Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC'S MOTION TO DISMISS NOTICES OF APPEAL FROM LBP-90-12" in the above captioned proceeding have q
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 m?il, and telefaxed as. indicated 1
by a pound sign, this 25th day of May 1990:
j Ivan W. Smith, Chairman (2)*
Thr, mas G.
Dignan, Jr., Esq.**#
Administrative Judge Robert K. Gad, III, Esq.
I Atomic. Safety and Licensing Ropes & Gray j
Board One International Place U.S.. Nuclear Regulatory Boston, MA 02110-2624 1
Commission i
Washington, DC 20555 Robert A. Backus, Esq. **#
Backus,.Meyer & Solomon 1
Richard F. Cole
- 116 Lowell Street Administrative Judge Manchester, NH 03106 Atomic Safety and Licensing Board Peter Brann, Esq.
U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 State House Station 6 Augusta, ME 04333 j
'Kenneth A. McCollom**
Administrative Judge John Traficonte, Esq.**#
1107 West Knapp Street Assistant Attorney General Stillwater, OK 74705 Office of the Attorney General i
One Ashburton Place 19th Floor Boston, MA 02108 l
m
l L
i Geoffrey Huntington, Esq.**
William Armstrong Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Exeter 25 Capitol Street 10 Front Street Concord,.NH 03301 Exeter, NH 03833 Diane Curran, Esq.**#
Gary W. Holmes, Esq.
Harmon, Curran & Tousley Holmes & Ellis 2001 S Street, NW 47 Winnacunnet Road Suite 430 Hampton, NH 03842 Washington, DC 20009 Barbara J. Saint Andr6, Esq.
H.J. Flynn, Esq.
Kopelman and Paige, P.C.
-Assistant General Counsel 101 Arch Street Federal Emergency Management Boston, MA 02110 Agency 500 C Street, SW Judith H. Mizner, Esq.
Washington, DC 20472 79 ctate Street Newburyport, MA 01950 Jack Dolan Federal Emergency Management Robert Carrigg, Chairman Agency Board of Selectmen Region I Town Office J.W. McCormack Post Office &
Atlantic Avenue Courthouse Building, Room 442 North Hampton, NH 03862 Boston, MA 02109 Mrs. Anne E. Goodman, Chairman Paul McEachern, Esq.**
Board of Selectmen Shaines & McEachern 13-15 Newmarket Road 25 Maplewood Avenue Durham, NH 03824 P.O. Box 360 Portsmouth, NH 03801 Hon. Gordon J. Humphrey United States Senate George Hahn, Esq.
531 Hart Senate Office Bldg.
Attorney for the Examiner Washington, DC 20510 Hahn & Hesson 350 5th Ave., Suite 3700 Richard R. Donovan New York, NY 10118 Federal Emergency Management l
Agency R. Scott Hill-Whilton, Esq.
Federal Regional Center Lagoulis, Hill-Whilton 130 228th Street, SW
& Rotondi Bothell, WA 98021-9796 79 State Street Newburyport, MA 01950 Peter J. Matthews, Mayor City Hall Allen Lampert Newburyport, MA 01950 civil Defense Director Town of brentwood Michael Santosuosso, Chairman i
20 Franklin Board of Selectmen Exeter, NH 03833 South Hampton, NH 03827 l
rm s
4,.,
X.
~
3-Robert R. Pierce, Esq.*
- 9 Ashod N. Amirian,'Esq.
Atomic Safety.and Licensing 1
Town Counsel' for Merrimac
-Board Panel-y 145 South Main Street U.S. Nuclear Regulatory, l
P.O. Box 38 Commission i
Bradford, MA' 01835:
Washington,;DC-20555 l
Suzanne Breiseth Atomic Safety.and Licensing j
i
- Bokrd of/ Selectmen Appeal Panel (6)
- 1 Town of-Hampton-Falls
-#(single copy) i Drinkwater Road U.S. Nuclear Regulatory Hampton falls,-NH' 03844 Commission Washington, DC 20555 1
! George Iverson, Director NH office of EmergencyE Atomic Safety and Licensing 4
Management' Board Panel (1)*
l State House Office Park South U.S.' Nuclear Regulatory 1
107 Pleasant Street Commission 1
Concord, NH 03301 Washington, DC 20555 j
office of the Secretary (2)*
U.S. Nuclear Regulatory Commission Washington, DC 20555.
Attn:
Docketing and Service Section 3
i 1
Edwin
. Reis, Deputy Assis ant General Counsel f
Reactor Licensing
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