ML20058K763
| ML20058K763 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/27/1990 |
| From: | Bachmann R, Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#390-10572 LBP-90-12, OL, NUDOCS 9007110157 | |
| Download: ML20058K763 (14) | |
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-USNRC UNITED STATES OF AMERICA *)0 JJ127 ' P 3 '45 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOXRD" " "'"
1 In the Matter of )
) Docket Nos. 50-443 OL e
' PUBLIC SERVICE COMPANY-OF ) 50-444-OL NEW HAMPSHIRE, at al.- ) Off-site Emergency Planning
)
(Seabrook Station, )
Units 1 and 2) )
l NRO STAFF'S BRIEF IN OPPOSITION TO SAPL'S APPEAL FROM LBP-90-12 i
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Edwin J. Reis, Deputy 1 Assistant General Counsel 1 for Reactor-Licensing ;
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' Richard G. Bachmann i Counsel for NRC Staff I i !
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June 27, 1990 9007110157 900627 F
{DR ADOCK 05000443 PDR c
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l
In the Matter of )
) Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, at 31 '.
) Off-site Emergency Planning .!
' ) ,
(Seabrook Station, ) i
' Units 1 and 2)' )
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I NRC STAFF'S BRIEF IN OPPOSITION TO SAPL'S APPEAL FROM LBP-90-12 h
l Edwin J. Reis,- Deputy Assistant General Counsel J for Reactor Licensing g
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Richard G. Bachmann Counsel for NRC Staff j.-
June 27, 1990 1
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UNITED STATES OF AMERICA
$ NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
) Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, 31 al. ) Off-site Emergency Planning
)
(Seabrook Station, )
Units 1 and 2) )
NRC STAFF'S BRIEF IN OPPOSITION TO SAPL'S APPEAL FROM LBP-90-12 INTRODUCTION Pursuant to 10 C.F.R. S 2.762(c), the' NRC Staff hereby files its brief in opposition to Seacoast Anti-Pollution League's
("SAPL's") brief on appeal from that part of LBP-90-12, issued May 3, 1990, hich dismissed SAPL from the proceeding before the Licensing Board.1 For the reasons set forth herein, the Staff submits that the Licensing Board properly dismissed SAPL from proceeding before it, and that portion of LBP-90-12 should be affirmed.
I SAPL filed a Notice of Appeal on May 16, 1990, from that portion of LBP-90-12 granting SAPL leave to withdraw from the
- proceeding, and on June 15, 1990, filed its brief on appeal (hereLfter cited as SAPL Brief). In ALAB-933, the Atomic Safety and Licensing Board ruled that although other portion of the appeal from LBP-90-12 were premature, the appeal of SAPL's dismissal from proceedings before the Licensing Board was ripe for consideration and should be decided after briefs on the issue were filed. ALAB-933, slip op. at 10-11. By order of June 18, 1990, the Appeal Board that responsive briefs on this appeal were to be filed by June 28, 1990. !
BACKGROUND SAPL has appealed that portion of LBP-90-12 which dismissed SAPL from the proceeding.2 In LBP-90-12, at 5, the Licensing Board ruled:
First, as to SAPL's participation in the = proceeding before ur., 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 wac 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. [ Footnotes omitted)
The SAPL notice referred to in the Licensing Board's opinion stated in pertinent part:
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 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 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 Board, as its January 19 letter made clear.g the The January 19, 1990 letter referred to in SAPL's pleading stated in full:
2 Notice of Appeal on Behalf of Seacoast Anti-Pollution League, dated May 16, 1990; Brief of Seacoast Anti-Pollution League on Appeal of LBP-90-12, dated June 15, 1990.
3 Seacoast Anti-Pollution League's Objections To Applicants' l Motion of January 26, 1990, dated February 1, 1990, at 1-2.
-...i.
1
- 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 of the remanded issues."
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 proceedings 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 nuclear license.
Perhaps the Board has forgotten that SAPL intervened in this proceeding to oppose the issuance of a nuclear license for Seabrook. I did not interven in this proceeding for the sake of being in the proceeding, and it has no intention of serving as an uncompensated emergency planner for FEMA, NRC, or the New Hampshire Emergency Management Agency.
In case the Board has forgotten SAPL's position in this matter, we enclose a copy of SAPL's Opening Statement.. SAPL's position remains what it has been, there is no " adequate" emergency plan for Seabrook, adequate emergency planning at Seabrook may indeed not be feasible, an therefore no nuclearlicenseshouldbeissued.p' ISSUE ON APPEAL Whetner the Licensing Board erred in dismissing SAPL from the proceeding before it after SAPL served notice that it would not further participate with regard to those issues before the Licensing Board.5
' Letter of Robert A. Backus to Administrative Judges, dated January 19, 1990, attached to SAPL's Notice of Appeal.
5 In its statement of the issue before the Appeal Board, SAPL included the question of whether SAPL's dismissal serves to (continued...)
-4 ARGUMENT The Licensing Board properly acted within its discretion in dismissing SAPL from the proceedings before it for refusing to participate on the issues remanded in ALAB-924.' See 10 C.F.R.
$$ 2.707, 2.718(e).7 The situation here is much like the situation 5(... continued)
" eliminate certain of the remanded issues." SAPL Brief at 2. In ALAB-933 the Appeal Board ruled that, with the exception of SAPL's dismissal itseif r.ppeals on the issues decided in LBP-90-12 were premature. .W.B-933, slip op, at 15. The Appeal Board noted that while SAPL's issues were dismissed along with their sponsor, the Licensing Board " went on to confront the merits of those issues."
Id. at 6. It further stated , "(I)rrespective of SAPL's current status with respect to its intervention in this proceeding, none of the substantive rulings in the May 3 order is appealable at this time." Id. at 11. Since appeals of the Licensing Board's decision on the merits of the issues are premature, the Staff does not here discuss the correctness of the rulings dismissing the contentions sponsored by SAPL.
'Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-924, 30 NRC 331 (1990).
7 10 C.F.R. S 2.707 provides:
On failure of a party to file an answer or pleading within the time prescribed in this part or as specified in the notices of hearing or pleading; to appear at a hearing or prehearing conference, to comply with any prehearing order entered pursuant to S 2.751a or S 2.752, or to comply with any discovery order entered by the presiding officer pursuant to S 2.740, the Commission or the presiding officer may make such
, orders in regard to the failure as are just, including, among others, the following:
(a) Without further notice, find the facts as to the matters regarding which the order was made in accordance with the claim of the party obtaining the order, and enter such order as may be appropriate; or (continued...) ,
situation in Georgia 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 contentions before a Licensing Board and later attempted to appeal.
The Appeal Board there stated:
Our precedent makes clear that "(plarties may not dart in and out of proceedings on their own terms and at their convenience 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, 907 (1982), review declined CLI-83-2, 17 NRC 69 (1983). Cf. Philadelphia Electric Co. (Limerick Generating-Station, Units 1 and 2), ALAB-845, 24 NRC 220, 252 (1986). Once a party effectively withdraws from a proceeding, its appeal rights are waived. Midland, 16 NRC at 907.
24 NRC at 530.
Although the refusal of the intervenor to participate in the Vogtle case occurred at the start of a hearing and SAPL's refusal to participate was - at the start of a remanded proceeding, the principle is the same - a party's voluntary re'.usal to participate foreclosed it from taking further part in the proceeding. See also 7( .. continued)
(b) Proceed without further . notice to take proof on the issues specified.
10 C.F.R. S'2.718 provides:
. A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order. He has all powers necessary to those ends, including the power to; (e) Regulate the course of the hearing and the conduct of the participants.
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Northern Indiana Public Service Co. (Bailiy Generating Station, Nuclear - 1), AIAB-2 2 4, 8 AEC 2 4 4, 251 (1975); Carolina Power &
Light Co. (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 810 (1986).
These rulings are in accord with a long line of Commission precedent. In Northern States Power Co. (Prairie Island Nuclear Generating Station, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (1975), it was stated that " intervention in an NRC adjudicatory proceeding does not carry with it a license to step into and out of the consideration of a particular issue at will"; an intervenor was foreclosed from further participating on remanded issues where he had not fulfilled Licensing Board obligations. In Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), iLAB-244, 8 AEC 244, (1974), the Licensing Board had proceeded with a hearing and refused to permit future cross-examination of witnesses testifying when intervenors walked out of a hearing. The Appeal Board stated:
American jurisprudence has long passed the point where a party - particularly one represented by experienced counsel - may refuse to participate in a case because the presiding official ruled in a manner it did not like. There are appropriate ways in preserving objections to such rulings; going home is not one of them. A party may not be heard to complain that its rights were unjustly
. abridged af ter "[h]aving thus purposefully refused to participate." Brotherhood of Railroad Trainmen
- v. Chicago, M., St. P. & P.R.R. , 380 F.2d 605, 608-09 (D.C. Cir., per Burger, J.), certiorari denied, 389 U.S. 928 (1967). See also, United States v. Taylor, 333 F.2d 633, 639-40 (5th Cir.
1964); Federal Power Commission v. Arizona Edison Co . , 194 F.2d 679, 683-86 (9th Cir. 1952).
, 8 AEC at 251, cited with approval, Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-89-2, 29 NRC 211, 225 (1989).- In Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), LBP-82-108, 16 NRC 1811, 1812 (1982), aff'd ALAB-719, 17 NRC 387 (1983), petition for review denied, CLI-83-29, 18 NRC 1159 (1983), it was concluded that an appropriate sanction for a willful failure to attend a prehearing conference was dismissal of an intervention petition. In Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1178-80 (1984), affirming LBP-82-115, 16 NRC 1923 (1982), cited with approval, id., CLI-89-2, 29 NRC 211, 225 (1989), the Appeal Board affirmed the dismissal of intervenors' contentions for a refusal to take part in proceedings below under procedures prescribed by the Licensing Board. Here, SAPL seeks to choose where and when it will take part in the remanded issues.s It cannot do so, and was rightly dismissed from the proceeding before the Licensing Board.
In the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981), the following f actors were identified as pertinent to deciding what sanctions to impose because of party's failure to meet its hearing obligations:
. s In Boston Edison Co. (Pilgrim Nuclear Generating Statior.,
Unit No. 2), LBP-76-7, 3 NRC 156 (1976), an intervenor was forad in default and his contentions dismissed, when he announced that while he would not participate in the evidentiary hearing, he reserved "the right to seek administrative and judicial review."
Similarly here, SAPL's statement that it will not participate until rulings are changed by " higher authority" does not provide any ground to vacate SAPL's dismissal.
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the relative importance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances.
See Shoreham, CLI-89-2, 29 NRC at 233. SAPL has refused to participate at-all in the remanded proceeding except on its own terms. Its actions sought to disrupt the orderly conduct of proceedings. Its actions were willful and not an isolated incident.' Thus, under the standards in CLI-81-8, the Licensing Board correctly dismissed SAPL in view of its notice of February 1, 1990, and letter of January 19, 1990, both of which emphasized that it would not participate in the proceedings. Compare, Shoreham, CLI-89-2, 29 NRC at 226-27, 229-31.10
' This is not SAPL's first failure 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 stated:
Because on all other occasions SAPL/
Audubon have adequately 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 SAPL/Audubon will not take it upon themselves to make unilateral decisions regarding the need to fulfill obligations imposed by directives of this Board.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-488, 8 NRC 187, 191 (1978).
-* 10 In its brief, at 3, SAPL states that it "cannot be foreclosed from its legal position merely because it chose not to expend scarce volunteer resources in a proceeding which cannot effect (sic), under the Licensing Board's own decision of November (continued...)
SAPL, in its Notice of Appeal of May 14, 1990, states it is appeuling "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 immaterial. SAPL's letter of January 19, 1990 made it very clear that SAPL would not participate in resolving the remanded issues.
In its " Objections" of February 1, 1990, SAPL reiterated its intention not to participate. On this appeal SAPL again states that "it did not choose to participate on those issues hefore the Licensina Board." SAPL Brief at 2 (emphasis in original). The Licensing Board correctly exercised its discretion and dismissed SAPL for refusing to participate in the remanded proceeding. See 10 C.F.R. SS 2.707, 2.718(e). That action was proper under the precedent-and policy cited above and should be affirmed.11 10(... continued) 9, the ultimate issue in this case." As often emphasized, a party's limited resources do not relieve it of its hearing obligation. See e.g. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC at 454; Philadelphia Electric Co.
(Limerick Generating Station Units 1 and 2), ALAB-819, 22 NRC 681, 730 (1985); Nisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 394 (1983). While SAPL cannot be forced to remain a party to the proceeding, this does not mean it should continue to be allowed to remain a party when it does not-wish to fulfill its hearing obligations.
11 SAPL, although admitting it will not participating below,
, states tnat " depending upon the disposition of those issues by the Licensing Board, [SAPL] may again come before the Appeal Board, the Commission, or a reviewing court." SAPL Brief at 2. However as stated'in Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALB-845, 24 NRC 220, 252 (1986):
only aggrieved parties may appeal decisions adverse to them. Virginia Electric and Power Co.
(continued...)
l 1
CONCLUSION For the reasons set forth above, the NRC Staff submits that-the Licensing Board in LBP-90-12 properly - dismissed SAPL from ~ the proceeding before it, and the decision should be affirmed.
Respectfully submitted,
-A Edwin J. eis.
DeputygssistantGeneralCounsel for Reactor Licensing ichard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland this 27th day of June, 1990 11(... continued)
(North. Anna Power Station, Units 1 and 2), ALAB-790, 20 NRC 1450, 1453 (1984). A party cannot be.
legally " aggrieved" for the purpose of appealing an adverse decision if it did not meaningfully participate in the process that led to the objectionable-decisions. ' As we stated in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant,. Units 1 and 2), ALAB-583, 11 NRC 447, 448 (1980), "[a]n administrative hearing would be a meaningless charade if those with ample
... opportunity to participate were allowed to stand idly by'and then, nevertheless, demand a replay when they do not like the result."
Thus, SAPL may not say it won't participate, and retain rights of appeal on issues decided adverse to its interests in the subject remanded preceding. SAPL's right to appeal from prior rulings was not ruled upon by the Licensing Board, as indeed it could not, and such issues are not here addressed.
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1 DOCKEILD l
-USHRC l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION nrntE DF SLCRO0f3 BEFORE THE ATOMIC SAFETY AND LICENSINGPAPPRAC/B'dARD'l l 14l n M h w ' I In the Matter of )
) Docket Nos. 50-443 OL i PUBLIC' SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, gt al. ) Off-site Emergency Planning
)
(Seabrook Station, )
Units 1 and 2) )
i r
CERTIFICATE OF SERVICE c I hereby certify that copies of "NRC STAFF'S BRIEF IN OPPOSITION I
TO SAPL'S APPEAL FROM LBP-90-12" in the above captioned proceeding a have been served on the following by deposit in the United States l mail, first class or, as indicated by an asterisk, by deposit in I the Nuclear Regulatory Commission's internal mail system, and as indicated by double asterisks, by express mail, this 27th-day of June'1990:
1 Ivan W. Smith, Chairman (2)* Thomas G. Dignan, Jr., Esq.** l Administrative Judge Robert K. Gad, III, Esq. I Atomic. Safety and Licensing Ropes & Gray l l Board One International Place l l U.S. Nuclear Regulatory Boston, MA 02110-2624 ,
Commission l
Washington, DC 20555 Robert A. Backus, Esq.**
Backus, Meyer & Solomon i l Richard F. Cole
- 116 Lowell Street l l ' Administrative Judge Manchester, NH 03106 l Atomic Safety and Licensing l Board Peter Brann, Esq.
U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General l Washington, DC 20555 State House Station 6 1'
Augusta, ME 04333 i Kenneth A. McCollom**
Administrative Judge John Traficonte, Esq.**
1107 West Knapp Street Acristant Attorney General l Stillwater, OK 74705 Office of the Attorney General l One Ashburton Place 19th Floor l Boston, MA 02108 l I
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2-Geoffrey Huntington, Esq.** William Armstrong Assistanc 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.
RHarmon, curran & Tousley Holmes & Ellis 2001 S Street, NW 47 Winnacunnet Road Suite 430 Hampton, NH 03842 Washington, DC 20009 Barbara J. Saint Andr&, Esq.
H.J. Flynn, Esq. Kopelman and Paige, P.C.
Assistant General Counsel Counsel for Amesbury, Federal Emergency Management Newburyport, & Salisbury Agency 101 Arch Street 500 C Street, SW Boston, MA 02110 Washington, DC 20472 Judith H. Mizner, Esq.
Jack Dolan Counsel for West Newbury.
Federal Emergency Management 79 State Street Agency Newburyport, MA 01950 Region I J.W. McCormack Post Office & Robert Carrigg, Chairman Courthouse Building, Room 442 Board of Selectmen Boston, MA 02109 Town Office Atlantic Avenue Paul,McEachern, Esq.** North Hampton, NH 03862 Shaines & McEachern 25 Maplewood Avenue Mrs. Anne E. Goodman, Chairman P.O. Box 360 Board of Selectmen Portsmouth, NH 03801 13-15 Newmarket Road Durham, NH 03824 George Hahn, Esq.
Attorney for the Examiner Hon. Gordon J. Humphrey Hahn & Hesson United States Senate 350 5th Ave., Suite 3700 531 Hart Senate Office Bldg.
New York, NY- 10118 Washington, DC 20510 R. Scott Hill-Whilton, Esq. Richard R. Donovan Lagoulis, Hill-Whilton Federal Emergency Management
& Rotondi Agency 79 State Street Federal Regional Center Newburyport, MA 01950 130 228th Street, SW Bothell, WA 98021-9796 Allen Lampert Civil Defense Director Peter J. Matthews, Mayor Town of Brentwood City Hall 20 Franklin Newburyport, MA 01950 Exeter, NH 03833
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i 3-Michael Santosuosso, Chairman Jane Doherty Board of Selectmen Seacoast Anti-Pollution League i South Hampton, NH 03827 5 Market Street j Portsmouth, NH 03801 Ashod N. Amirian, Esq. i Town Counsel for Merrimac Robert R. Pierce, Esq.* l 145 South Main Street Atomic Safety and Licensing l P.O. Box 38 Board Panel l Bradford, MA 01835 U.S. Nuclear-Regulatory Commission Suzanne Breiseth Washington,-DC 20555 Board of Selectmen Town of Hampton Falls Atomic Safety and Licensing Drinkwater Road Appeal Panel (6)* )
Hanoton Falls, NH 03844 U.S. Nuclear Regulatory 1 Cortmission George Iverson, Director Washington, DC 20555 NH Office of Emergency Management Atomic Safety and Licensing ,
State House Office Park South Board Panel (1)*
107-Pleasant Street U.S. Nuclear Regulatory ,
Concord, NH 03301 Commission !
Washington, DC 20555 l
Office of the Secretary (2)* ,
U.S. Nuclear Regulatory l Commission I hashington, DC 20555 attn: Docketing and Service-L Section l
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R'ichltrd G. Bachmann. '
Counsel for NRC Staff O
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