ML20043C714

Intervenor Opposition to Motions to Strike Notice of Appeal of LBP-90-12.* Beach Sheltering Issues Addressed. W/Certificate of Svc

ML20043C714
Person / Time
Site:	Seabrook
Issue date:	06/04/1990
From:	Curran D, Traficonte J HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10422 ALAB-894, ALAB-924, LBP-88-32, LBP-89-33, LBP-90-12, OL, NUDOCS 9006060094
Download: ML20043C714 (12)

Text

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% JUN -4' P4 :16 UNITED STATES OF AMERICA -

NUCLEARREGULhTORYCOMMISSION{(E[f(5,]/[EIg ATOMICSAFETYANDLICENSINGAPPEALBOARb

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Before the Administrative Judges:-

G. Paul Bollwerk, III, Chairman Alan S. Rosenthal.

Howard A.'Wilber

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In the Matter of ) Docket Nos. 50-443-OL

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.), 444-OL- i PUBLIC SERVICE COMPANY . ) 4 OF NEW HAMPSHIRE, EI AL. )

)  :{i (Seabrook Station, Units 1 and 2) ) June 4, 1990.-

)- y INTERVENORS' OPPOSITION TO, NOTIONS TO' STRIKE NOTICE OF APPEAL OF LBP-90-12 The Intervenors, the New England Coalition:on Nuclear:

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Pollution and the Massachusetts Attorney General, oppose;the- -j Applicants' and Staff's motions to strike their May ll-Notice '

of Appeal of LBP-90-12,

1. Staff's motion: i q

A. Intervenors' Appeal from-Disposition of LOAs:for j Teachers and Special Needs Survey, ,

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The-Staff does not to assert that'the Lidensing J

Board's final disposition of these issues is not a " major i segment" of the case under ALAB-894. .The only basis for.the ~  !

j Staff's motion to strike Intervenors' appeal-of these-issues is i that once SAPL was dismissed these issues disappeared and  ;

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i therefore no appeal by Intervenors will lie. Although'this is an aspect of Intervenors' appeal of.the merits of the Licensing:  ?

Board's decision'in LBP-90-12 on these issues,.in opposition to the staff's motion to strike they-set out the arguments they made to the Licensing-Board in their February 7 opposition to' Applicants' January 26 Motion to Dismiss Abandoned Romand:

Tasues.

Assuming arauendo that SAPL withdrew or abandoned certain remanded issues on January 19,'1990, this'is of no moment because other Intervenors had already adopted these issues and:'"

had (and have) taken all necessary steps to: secure their rights to participate in their resolution.- -

1) At the-point at which the Intervenors filed their'-

briefs on appeal of LBP-88-32 (March 1989) each Intervenor had.

the right to appeal on all issues in the proceeding..' gen 54  :

Fed.-Reg. 33168, 33177.(August 11, 1989).- The Appeal Board in i review of LBP-88-32 expressly' ordered.that the various intervenors DSLt duplicate arguments -in their briefs. Thus,'the Mass AG and NECNP were just as:much seeking appeal on the issues briefed or argued by SAPL to the Appeal Boardias SAPL.

l- was. Indeed, NECNP in its March 24,'1989'Brief on Appeal of.

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$BP-48-32 expressly stated at 1:

In light-of the Appeal-Board's directive to avoid- -

, repetitive arguments, NECNP has not' briefed'all of:the p issues that'are of concern to'it. Therefore, we adopt and-incorporate by reference the briefs filed by the other Intervenors.

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2) On November 9, 2 ' days _ after AIAB-924 issued, the Mass I i

AG asserted the Commonwealth's right as an interested state'to involve itself in the further resolution oflall the remanded

!' issues. 183 Intervenors November 9 Request'for Prehearing conference in Response to'AIAB-924 at 3 n.1*

Me Mass AG hereby asserts'his right.as.an interested state to participate fully in all remanded issues.

In offact, even if the Mass AG is -deemed not to have' participated below in three of theifour remanded issues (the ,

teachers, the special facility ETEs.and the Special Needs'

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Survey) and otherwise not to have briefed-any.of these issues on appeal, upon the issuance of ALAB-924, the Mass:AG expresslyL 4

asserted his right under NRC lavLto come into this part of the-proceeding, as it were, " late" = and involve ' itiself in ? any further resolution of the remanded: issues'.- As such the Mass AG

!. taxes the proceeding as he finds it which is precisely what he ~

has done since November 9, 1989:

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a. The Mass AG (with SAPL and NECNP) . filed a' motion for mandatory relief.on November 13 with_this'Appea10 Board pursuant to its jurisdiction over LBP-88-32, claiming that the Licensing Board's disposition of the remanded'. issues in .

LBP-89-32 violated the mandate of AIAB-924. This motion represents and reflects the Mass-AG's and NECNP's independent L

involvement in and prosecution of the issues surrounding the-j AIAB-924 remand.

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'b. Further, after LBP-89-33 issued , the Mass AG-and >

b NECNP again asserted thcir independent involvement in the e

remanded issues by supplementing their earlier November 13 '

notion with a further motion to the Commission. This l

December 1 motion discussed-in great detai1=the factual and'

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legal errors made by the Licensing Board'in its. dispos'itioniof4 the remanded issues as-explained in LBP-89-33. Obviously, ,

Intervenors' unambiguous prosecution of the remanded issues in.

this regard took place prior to January 19, 1990. Indeed, the Commission itself in its Orders of November 16 (taking- ,

. jurisdiction over the Intervenors' November-13' Motion),.

November- 21 (setting a schedule for briefs).and November 22L ,

(amending that schedule) acknowledged the obviousLinvolvement ,

o by the-Mass AG and NECNP in the proper disposition of the l' h 924 remanded issues by giving these Intervenors an excress ,

emnertunity to brief the-Licensing Board's-disposition as set. 1

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out in.LBP-89-33.

In sum, there is unequivocal = evidence that the' Mass AG and

. i NECNP have prosecuted the issues remanded' in. ALAB-924.. from . '

November 9 forward to this date, taking all steps to preserve their rights, both trial and appellate. Their. prosecution of these issues has been acknowledged in. orders of this Appeal Board, the.- Commission ' and even in the January 11 Order of ' ther ' ,

Licensing Board. Even assuming arauendo,-that SAPL's January-19, 1990 3etter effected a withdrawal or abandonment by SAPL,- '!

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the Mass AG and NECNP are independently prosecuting these .

issues and have been vociferously prior to January 19..

1/ NECNP's involvement in the ICAs-for teachers issue.makes-the Licensing Board's disposition even more unfair. on November 26,-1986, NECNP. filed a statement of contentions and.-

at 23-24 of that pleading-it sought to adopt the contentions:

filed;by the Town of-Hampton, including a contention raising the issue of LOAs with teachers. In its December 31, 1986?

reply to the Staff's Response to its contentions, NECNP explained that it did not seek to broaden Hampton's; contentions but instead sought to protect its rights to independently litigate Hampton's issues. .In its'May 18, 1987.. Memorandum and order the Licensing Board denied NECNP's effort to adopt ~

Hampton's contentions stating: at 63-641-NECNP responds that it' believes thatit may be.

necessary to= adopt Hampton's contentions in: order-to-litigate them if the CommissionLadopts a recently proposed rule that-would' prevent parties fromcfiling proposed findings or appeals on contentions;they did not sponsor . .-.ENECNP would agreeLto_ seek joinder of-Hampton's contentions if such joinder. assured full rights of litigation . . . This: Board cannot decide-prospectively what'the possible effact-of.a proposed..

Commission rule on a party to this proceeding might be

. .. . NECNP's request is. denied.*

• This denial does not affect NECNP's right'to participate-in the litigation of-another party's contentions regulations.

under current Commission rules and' '

NESP did not appeal this aspect of the May 18) 1987 Memorandum no doubt because the then-current rules allowed NECNP the right to appeal-on other parties' contentions. .It did so in March 1989 joining Hampton's (as well' as SAPL's) ' claims Lof errorLin LBP-88-32.

Hampton has not. appealed-LBP-90-12 and'SAPL was dismissed by-the Licensing Board in that. decision.- Precisely.

what NBCNP sought to-protect by. joining Hampton's contentions will have to standing occurred if this' Board finds that Intervenors haveJno appeal LBP-90-12.

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9 B. The Staff moves to strike appeal of the subiasue q

concerning ETE's for special facilities on the. grounds that this issue does not meet the " major segmGnt" after remand test as articulated by AIAB-894. Intervenors believe this subissue is discrete enough from all.other pending remanded issues.to -

meet that test. Intervenors did not and:do not assert that this subissue, if not appealable as a matter of right now under. .

AIAB-894, ' meets the interlocutory standard.

C. The Staff moves to' strike Intervenors' interlocutory appeals of certain beach sheltering issues,l including?the ,

denial of Intervenors' motions to reopen.- Intervenors assert that these rulings affect the basic structure of the proceeding in a-pervasive or unusual manner because these rulings-~ deny Intervenors due process of law.- Indeed,eas Intervenors: stated in their May 11 Notice of Appeal, the Board's May:3 decision on

' shelter-in-place" completely contradicts the express ruling of 'i LBP-88-32 and negatives weeks and-months of'NHRERP hearings which were given over_to the appropriate use of sheltering the general boach population. As Intervenors see it, if'a '

Licensing Board can simply rewrite history and. ignore its own prior decisions and holdings which were based on sworn' i testimony, then the proceeding is not " fair" or,even  !

meaningful. Interlocutory review should be available in thesu circumstances.

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l Moreover, as the Staff points out, this Board has accepted the lower Board's referral of closely-related beach sheltering h . issues. In these circumstances, review of Intervenors' l

interlocutory claims of error is in the interest of judicial

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economy. In this regard, Intervenors request;that it.this  :

Appeal Board accepts = interlocutory review of these closely-related beach sheltering issues, that it provide additional time beyond June 8 for Intervenors to file their brief on the a

matters referred by'the Licensing Board as well as these interlocutory claims.

2. The Applicants' Motion ,

A. Standina to Anpagl l Like the. Staff, the-Applicants assert;that the '

Intervenors here lack standing to appeal from the final-disposition of the LOA issue and the special Needs= Survey issue. Applicants' May 17. Motion to Strike Notice of Appeal at 16-19. In response, Intervenors.again. assert hhat l independently from SAPL they have sufficiently. litigated.these-issues at both the trial and appellate levels prior to-January 19, 1990 to.give them standing to appeal the-Licensing Board's final disposition on the merits. As to the Applicants' -

1 reliance on the amended rules of NRC procedure ( $ at 16-17), '

it is aisplaced: -

l Under current practice,-a party may file proposed findings and conclusions of law on-any issue in the, proceeding and may also appeal on all is' sues in the' >

proceeding. ,

54 Fed. Reg. 33177 (August 11, 1989).

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8. Maior Segment After Ramag Unlike the staff, the Applicants do assert that LoAs I l.

for teachers and the Special Needs survey are not now appealable under ALAB-894. May 17 Motion at 22-23 Again, ]

. Intervenors believe the " finality" test of ALAB-894 is met. In j any event, their notice of appeal was protective in light of

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that decision. With the Staff, Applicants assert that ETEs for l l special- facilities is not now appealable under ALAB-894. i i Intervenors assert that it is and, in any event, their notice j of appeal was protective, c F C. Beach Shelterine_ Issues j Applicants assert that the Licensing Board's. ,

' interlocutory rulings on the remanded beach sheltering issue do -

1 not meet the standard for interlocutory review. May 17 Motion ,

at 24-25. Applicants do not address at all Intervenors' claims- ,

l that these rulings put at issue the fundamental fairness of i

this proceeding and whether it accords with due process of l

l l law. Instead, they assert that the Licensing Board's i " shelter-in-place" ruling is " factual" and therefore not i

amenable to interlocutory review. Intervenors seek review not  !

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t of a " factual" finding but of the. Licensing Board's May 3 l

ruling to the extent that it expressly contradicts sworn

testimony, its own prior rulings in LBP-88-32 and this Appeal ~

Board's rulings in AIAB-924. Sheltering the general beach population is an already litigated issue where findings of-fact

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i and law have been made, upheld in part and reversed in part j based upon a record. A trial. board is not free to ignots all of thin adjudicatory history on romand and reinterpret a key- j I

j term under the guise of making a

• factual" finding.

In any event, Applicants also ignore the fact that this l

Boer 1R has accepted the referral of closely-related beach l s

sheltering issues and should take up with this referral the  !

interlocutory rulings Intervenors seek to have reviewed.

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS f

NEW ENGIAND COALITION JAMES M. SHANNON .

ON NUCLEAR POLLUTION ATroRNEY GENERAL i

h5 M 0 U j i Diane curran, Esq'.' fraficonte

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Harmon, curran & Tous l )ey ef,-Nuclear Safety Unit Suite 430 . Ode Ashburton Place ,

2001 S. Street, N.W. 36ston, MA 02108 l Washington, D.C. 20009-1125 -(617) 727-2200.  ;

(202) 328-3500 .;

l Dated: June 4,.1990 l I

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UNITED STATES OF AMERICA -

I NUCLEAR REGUIATORY CONNISSION '90 JW -4 P4 36 i ATONIC SAFETY AND LICENSING APPEAL BOM4 l 000A00 rhf;/[}$ I Before Administrative Judges: MAng i G. Paul Bo11werk III, Chairman Alan 8. Rosenthal i Howard A. Wilber  !

l

)  !

In the Matter of ) Docket Nos. 50-443-OL l

) 50-444-OL 3

. PUBLIC SERVICE COMPANY )

l OF WEW HAMPSHIRE, RT AL. )  !

)

(Seabrook Station, Units 1 and 2) ) June 4, 1990

)

t CERTIFICATE OF SERVICE '

t I, John Traficonte, hereby certify that on June 4, 1990, I made service of the enclosed INTERVENORS' OPPOSITION TO MOTIONS  !

TO STRIKE NOTICE OF APPEAL OF LBP-90-12 via telefax as indicated by (*) and by first class mail tot t

Ivan W. Smith, Chairman Kenneth A. McCollem I Atomic Safety & Licensing Board 1107 W..Knapp St.

U.S. Nuclear Regulatory Commission Stillwater, OK- 74075 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr. Richard F. Cole Robert R. Pierce, Esq. -

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory commission U.S. Nuclear Regulatory Commission' '

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

Bethesda, MD 20814 ,

i Bethesda, MD- 20814

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• Docketing and Service

• Thomas G. Dignan, Jr.

tJ . S . Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place j

4 Boston, MA 02110

• Mitti A. Young, Esq. Phillip Ahrens, Esq.

, Edwin J. Reis, Esq. Assistant Attorney General j U.S. Nuclear Regulatory Commission Department of the Attorney General 1

O!! ice of the General Counsel Augusta, ME 04333 11555 Rockville Pike, 15th Floor Rockville, MD 20852 H. Joseph Flynn, Esq. Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission ,'

Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.

Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission i 116 lowell Street Washington, DC 20555 P.G. Box 516 Manchester, NH 03106 Jane Doughty Diane Curran, Esq.

Seacoast Anti-Pollution Mague Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.

Kopelman & Paige, P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Grahan, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Imv Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 i Ashod N. Amirian, Esq. Senator Gordon J. Humphrey i

145 South Main Street U.S. Senate P.O. Box 34 Washington, DC 20510 Bradford, MA 01835 (Attn: Tom Burack)

Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507- Office of the Attorney General

Concord, NH 03301 25 Capitol Street (Attnt Herb Boynton) Concord, NH 03301 l

Paul McEachern, Esq.

Shainee & McBachern 25 Naplewood Avenue, Portsmouth, NR 03801

• G. Paul sollwerk, chairman

• Alan S. Rosenthal l Atomic safety & Licensing Atomic Safety & Licensing  !

Appeal Board, 5th FL. Appeal Board, 5th FL.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ]

t Betheeda, MD 20814 Bethesda, MD 20814-

• Maward A. Wilber. Jack Dolan l

Atomic safety & Licensing Federal Emergency Management Agency 1 Appeal Board, 5th FL. Region 1 l U.S. Nuclear Regulatory Commission J.W. McCormack Post Office &

Sethesda, MD 20814 Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director N.R. Office of Emergency Management '

State House office Park South 107 Pleasant Street Concord, NH 03301 ,

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Respectfully submitted,_

JAMES M. SHANNON ATTORNEY GENERAL C

h Traficonte ,

sistant. Attorney General- '

hief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place j

Boston, MA 02108 J l

(617) 727-2200

_ l Dated: June 4, 1990 .

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