ML20058K716
| ML20058K716 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/27/1990 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#390-10579 ALAB-924, LBP-90-12, OL, NUDOCS 9007110103 | |
| Download: ML20058K716 (10) | |
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00ChlllD-USHRC June 27, 1990 E
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0FFICE OF SECREMRY 00CKEIg{i1"VICE before the 4
ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE,'at al.
50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2)
Planning Issues)
On Appeal From a Ruling of the Atomic Safety and Licensing Board
/LBP-90-12) (May 3, 1990)
BRIEF OF LICENSEES STATEMENT OF THE CASE On January 11, 1990, the Licensing Board herein issued an unpublished memorandum and order "regarding issues remanded in ALAB-924."
After describing the fact that this Appeal Board had, in a ' decision denominated ALAB-924,' remanded four issues on 1Public Service Connany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC 331 (1989).
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l appeal from a prior decision of the Licensing Board,a the l
Licensing Board went on:
.to provide to interested parties an oppor-tunity to advise the Board on how to proceed in accordance with the directives of ALAB-924 and how they propose to participate 1n the resolution of the remanded issues."3 On January 19, 1990, counsel for the Seacoast Anti-Pollution League (SAPL), wrote a letter to the Licensing Soard in response to the January 11 memorandum and order.
The middle two paragraphs of this four-paragraph letter read as follows:
"My first reaction was that this Order must be in jest.
Surely, the members of this Board could not expect SAPL to have the least interest whatsoever in any further oroceedinas before the Board, given the fact that the Board has decided the issue in'the case by directing the 'immediate authorization' for a full power license.
"Perhaps the Board has forgotten that SAPL intervened in this proceeding to oppose the issuance of a nuclear license for Seabrook.
It did not intervene in this proceeding for the sake-of being in the proceeding, and it has no intention of servina as an uncomoensated emeraency olanner for FEMA.
NRC. or the New Hamoshire Emercency Manaaement Aaency."
(Emphases added.)
In. addition, the letter contained a footnote which read as follows:
"If it comes to pass that these new proceedings involve licensing, SAPL will aaain be a participant."
(Emphases added.)
2Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-32, 28 NRC 667 (1988).
3Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Memorandum and Order (Regarding Issues Remanded in ALAB-924) (unpublished) (Jan. 11, 1990) at 1.
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In response to this filing, the Licensees filed a " Motion to Dismiss Remanded Issues" wherein Licensees basically took the position that (a) SAPL had refused to further participate in the proceeding, (b) certain of the issues in the proceeding were sponsored solely by'SAPL, (c) the refueal to participate amounted to an abandonment by SAPL of those issues which SAPL, alone, had sponsored, and (d) these issues should be dismissed as a matter of law from the proceeding.
SAPL replied to this motion with a document styled,
" Seacoast Anti-Pollution League's Objection to Applicants' Motion of January 26, 1990"
(" Objection").
In the Objection, SAPL alleged three reasons why the Licensees' motion should be denied, only one of which has relevance to the appeal at bar.'
That reason was set out in the Objection, as follows:
"First, at no time has 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 carticinate in the litiaation on any issues
'The other reasons given were (1) that even assuming SAPL, has by-its actions " abandoned" the issues, they survived either in and of themselves or through the aegis of adoption by another party and (2) a lack of jurisdiction in the Licensing Board to L
deal.with the issues in light of petitions for review which had I
been filed in the United States Court of Appeals.
The continued I
vitality of the issues, assuming SAPL abandonment, must await adjudication of an appeal taken by another party so claiming.
As to the jurisdictional question, that has been resolved against SAPL's position within the agency already.
As this Appeal Board has noted, the only issue on appeal at this point is whether the Licensing Board was correct in concluding that SAPL had voluntarily withdrawn.
Public Service Comnany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-933, 31 NRC
, Slip Op.
at 10-11 (June 7, 1990) hereafter cited "ALAB-933" and to the slip opinion. l
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that are unrelated to licensina.
This Board has made clear in both LBP-89-32 and LBP 33, that it considers the remanded issues are irrelevant to-licensing because, in the Board's view, none are ' safety significant'.
Until that determination is changed by the Board or vacated by higher authority, EAEL has no reason to carticinate in further croceedinas before the Board, as its January 19 letter made clear.
"In short, in no way has SAPL abandoned the issues:
it has simply responded to the Board's decision that none of those issues are relevant to licensing, a decision that SAPL believes is both unprecedented and (Emphases supplied.)pd, patently illegal."
erroneous, and, inde On May 3, 1990, the Licensing Board issued the ruling on appeal herein in a-decision denominated LBP-90-12.'
Therein, the Licensing Board stated:
"First, as to SAPL's participation in the proceeding before us, we note that its early notice to the Board was to the effect that it would not participate on any issue not related to licensing.
The effect of the Commission's order of March 1 authorizing the license was to foreclose the condition upon which SAPL would have participated.
We therefore grant leave to SAPL to withdraw and dismiss SAPL from the proceeding before this Board."7 SAPL appealed in a timely fashion from this ruling.
SAPL has now filed a brief before this Appeal Board wherein it continues to make clear that it will not, and has no intention of, 50biection at 1-2.
'Public Service Comnany of New Hannshire (Seabrcok Station, Units 1 and 2), LBP-90-12, 31 NRC (May 3, 1990), hereafter cited as LBP-90-12 and to the slip opinion.
7LBP-90-12 at 5.
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7 participating in the proceedings before the Licensing Board, but nevertheless apparently requests this Appeal Board to give SAPL an advisory opinion to the effect that its failure to participate will not preclude it from appealing whatever results from the proceedings before the Licensing Board.#
It is in the foregoing posture that this matter comes before this Appeal Board.
ARGUMENT As phrased by this Appeal Board, the issue on appeal is:
"Whether the Board was right in its copclusion that SAPL had voluntarily withdrawn?"
SAPL apparently concedes the matter in its brief to this Appeal Board.
Although SAPL states that it "never asked leave to withdraw," SAPL states flatly that it " indicated that it would not be participating in the proceeding before the Licensing Board," and "did not choose to participate in the remanded proceedings on those issues before the Licensina Engrd.""
- Thus, there can be no doubt that SAPL has voluntarily withdrawn from the: remanded proceeding, and the Licensing Board was correct in so concluding.
'The SAPL brief appears, in reality, to be devoted to another issue, which, as we understand it, is not yet properly on appeal, which is, the legal effect of its action of withdrawing.
The eBrief of Seacoast Anti-Pollution Leaaue on Anneal of LBP-90-12 (June 15, 1990), passim.
'ALAB-933 at 10.
EAEL Br. at 2...
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resolution of this question will come when, as and if SAPL attempts to appeal any of the results flowing from the remanded proceeding;-appeals which will come later, at which time the issue SAPL has briefed will_be ripe for consideration.
In the event t61s Appeal Board deems that the issue of the legal effect of SAPL's withdrawal is now before it for resolution, it is the view of the Licensees that SAPL has, by its actions, forfeited any and all appeal rights it may have with respect to the remanded matters.
"(I]ntervention in an NRC proceeding does not carry with it a license to step into and out of consideration of a particular issue at will.""
" Parties may.
not dart in and out of proceedings in their own terms and at their convenience and still expect to enjoy the benefits of full participation. without the responsibilities."12 SAPL has violated these principles.
SAPL never sought leave from the Licensing Board to be allowed for alleged penury, or I
other reasons, to limit its participation.
Nor did it take the available step of announcing that lack of funding would prohibit it from being actively involved, but it would rely upon the Attorney General of Massachusetts as the lead intervenor to make its case.
Instead, SAPL simply attempted to face the Board with
" Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (1975).
12Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 907 (1982); United States Denartment of Enercy (Clinch River Breeder Reactor Plant), ALAB-761, 19 NRC 487, 493 (1984).
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an absolute situation and the result which legally flows is that it'will have no appeal from anything that happens on romand, and, to the extent that it was the sole sponsor of certain issues, no one else will have an appeal right either.
CONCLUSION The-decision of the Licensing Board on the question at bar should be affirmed.
Respectfully submitted,
/
, w /+~s/P Thomas G.
Digi %n, Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout-Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 counsel for Applicants 1
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00LhEIED CERTIFICATE OF SERVICE V5NRC I, Thomas G. Dignan, Jr., one of the attorneys fogthgo gg p3 :49 Licensees herein, hereby certify that on June 27, 19 M, T" made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery toic(or,$ECREIARY where indicated, by depositing in the United States inaiQ*NG A MWM
^HCH L
first class postage paid, addressed to):
Alan S. Rosenthal, Chairman Mr. Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fifth Floor-Fifth Floor 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Mr. Thomas S. Moore Mr. Richard R. Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center Ccmmission 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 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 Board 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
1 George Dana Bisbee, Esquire Robert R. Pierce, Esquire Associ. ate 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, Esquire Edwin J. Reis, Esquire Andrea C.
Ferster, Esquire Office of the General Counsel Harmon, Curran & Tousley U.S. Nuclear Regulatory Commission Suite 430 One White Flint North, 15th F1.
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 U.S. Nuclear Regulatory Manchester, NH 03105 Commission East' West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Suzanne P. Egan, City Solicitor Appeal Panel Lagoulis, Hill-Whilton &
U.S. Nuclear Regulatory Rotondi Commission 79 State Street Mail Stop EWW-529 Newburyport, MA 01150 Washington, DC 20555 Philip Ahrens, Esquire John Traficonte, Es quire Assistant Attorney General Assistant Attorney General Department of the Attorney Department of the Attorney General General' Augusta, ME 04333 One Ashburton Placs, 19th Fl.
Boston, MA 02108 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 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
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- Senator Gordon J. Humphrey U.S. Senate
- Senator Gordon J. Humphrey One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301' (Attn:
Tom Burack)
(Attnt-Herb Boynton) l G.
Paul Bollwerk, III, Chairman George Iverson, Director Atomic Safety ana: 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. Jack Dolan Federal Emergency Management Agency Region I J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 j
i Tho~mai G.' Df1fnTn, Jr.
(*= Ordinary U.S. First Class Mail.)
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