ML20070E774

Opposition to Licensee Motion to Dismiss Appeal of LPB-89-38.* Believes Board Should Not Dismiss Intervenors Appeal Because There Was No Hearing on Rejected Contentions. Board Should Deny Licensee Motion.W/Certificate of Svc

ML20070E774
Person / Time
Site:	Seabrook
Issue date:	02/25/1991
From:	Backus R, Curran D, Greer L BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#191-11470 LPB-89-38, OL, NUDOCS 9103060208
Download: ML20070E774 (7)

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DOU.LillD 5' UNITED STATES OF AMERICA UMMC NUCLEAR REGULATORY COMMISSION 3 ATOMICSAFETYANDLICENSINGAPPEALbOkkD 27 E411 Before Administrative Judgestorc - -M W ,

, x s<  :!

Thomas S. Moore, Chair > nan .

G. Paul Bollwerk, III i Howard A. Wilber

)

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

)_ 50-444-OL

. PUBLJC SERVICE COMPANY )

OF NEW HAMPSHIRE, EI AL. )

)

(Seabrook Stat ion, Units 1 and- 2) ) February 25, 1991

)

OPPOSITION TO LICENSEE'S MOTION TO DISMISS APPEAL OF LPB-89-38 Now comes the Massachusetts Attorney General, the. Seacoast Anti-Pollution League and the "9w England Coalition on Nuclear Pollution ("Intervenors") and-oppose.the Licensees' Motion to Dismiss'the Appeal of LBP-69-38 on the folloiing grounds:

'1. - During-the pondtncy of Commonwealth.tl aassachusetts v.

!!RC; , F.2d , Nos. 89_-1306 gt.AL.,-(D.C. Cir.

Jan .25,i1991), the Court of - Appeals 'nga sponte - issued 1 on order 4 inquiringJof1thel parties as=to whether the issue or r,speal (pertaining'to the Petitioner's 1988 onsite exercise contention-

-had been rendered moot by aisubsequentnexercisc. Order,-No.;

4 89-1306 at ali, dated October 12,_1990.

The parties filed responses 1tolthatLorder. In their responses, the Nuclear

-Regulatory . commission and Public Service Company of, New Hampshire 910306020a 910225 PDR

-O ADOCK 0S000443' PDR y4p$  !

. 1 took the position that the issue arising from the rejection of .

the June 1988 onsite exercise contention had been mooted by the performance of September 1989 onsite exercise. The Petitioners ,

1 took the posit'an that the issue was not moot since the 1989 onsite excrc. had been challenged a being insufficient in scope. The appeal of Licensing Board's decir,ica rejecting the ,

1989 onsite scope contention (LBP-89-32) is pen (.ing before this board. The Licensees have filed a motion seeking to alsmiss that appeal in light of the Court of Appeals decision in Commonwealth of Massachusetts v. NRC, Id.

2. In their motion the Licensees quote the Court of Appeals ha stating:

"We do not believe that such an onsite e;ercise is intended to s-persede the full participation drill, and thus we reiect the NRC's contentiqn that the onsite exercise becomes the 'leaal underpinnina' fer approval of the full power license. (citatio.. omitted)."

Slip Op. at 46.

The Licensees then go on to interpret that sentence as meaning "that as a matter of la ', t!. nvents which occurred at the (1989) Exercise, and the (1989) Exercise, itself are not material matters with respect to the issuance of Seabrook's operating license." Licensees' Motion 54. That interpretation by the Licensees misconstrues the import of what the Court of Appeals was saying. The Court of Appeals did not say the results of the 198S onsite exercise wera not material to a licensing decision. It simply stated that the fact on onsite exercise was performed af ter the full participation exercise i

did not moot the issue in front of the court arising 3, the onsite portion of the full participation exercise of June 1988. Issues arising from the exercise of a full participation exercise are material to a licensing decision, and if a license is not granted with in one year of a full participation exercise, then issues arising the onsite exercise recuired by 10 C.F.R. Part 50, Appendix E Section'IV.F.1. are material to licensing. The Court of Appeals never wt asked to address the question of the materiality of issues arising from the performance of a prelicense onsite exercise to a licensing decision and did not ask address that question.

.7 . The Court of Appeals was fully aware as a result of the pleadings filed by the parties before it that the appeal of L Licensing Board's rejecti.n of the 1989 onsite exercise was pending before the Appeal Board. Had the Court of Appeals * .r intended to say that consideration of the 1989 onsice was immaterial to a licensing decision, it would have done so in much more direct and explicit way than the gloss provided by the Licensees to the quoted sentence. If one reads the quote from the Court of Appeals in context, it is simply saying the performance of the 1989 onsite did not- supplant issues arising from the 1988 full participation exercise. The commission's regulations require both a full participation exercise within Lwo years prior to licensure and on onsite exercise within one year of licensure. 10 C.F.R. Part 50 Appendix E. Issues arising from both exercises are material to a licensing decision.

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CONCLUSION Therefore,-the Board should not dismiss the Intervenors' appeal;of LBP-89-38. The Intervenors had a right to a hearing l

on the_ rejected contentions. This Board should deny the motion-

-of the Licensees.

Respectfully submitted, NEW ENGLAND COALITION ON SCOTT HARSHBARGER NUCLEAR POWER- ATTORNEY GENERAL l

bla ,~ httvn YM #

$ j).12 ! (I0 .

Diane Curran, Esq. Leslie Greer

-Harmon, Curran 1& Towsley Assistant Attorney General Suite 430 Nuclear Safety Unit 2001-S Street, N.W. One Ashburton Place Washington, DC 20008 Boston, Massachusetts 02108 617-727-2200 SEACOAST ANTI-POLLUTION LEAGUE' Nd ibdke s dM61 Robert Backus, Esq.V

-Backus, Meyer &_ Solomon

-116.Lowell Street-P.O.--Box,516 Manchester,'NH- _03106

-Dated: -February 25, 1991 1983n-l ,

E

UNITED STATES Oi AMERICA-NUCLEAR REGULATORY COMMISSION '] [.

ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges: N 1 Thomas S. Moore, Chairman ~ no .

hG G. Paul Bollverk, III JN ' Q, Howard A. Wilber

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) February 20, 1991

)

CERTIFICATE OF SERVICE I, Leslie Greer, hereby certify that on February 25, 1991, I made service of the enclosed Opposition to Licensee's Motian to Dismiss Appeal of LBP-89-39 by Federal Express as indicated (*),

by hand as indicated by (* *) , and-by first class mail to:

Ivan W. Smith, Chairman Kenneth A. McCollom 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 208b.

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 Bethesda, MD 20814 l

l l

Paul McEachern, Esq. Michael Sinclair Shaines & McEachern Graystone Emergency Management 25 Maplewood Avenue Associates P.O. Box 360 13 Summer Street Portsmouth, NH 03801 Hillsboro, NH 03244

~

• G. Paul Bollwerk, III

• Thomas S. Moore, Chairman Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commiesion Washington, D.C. 10555 Washington, D.C. 10555

• Howard A. Wilber Jack Du.

Atomic Safety & Licensing Federal Emergency Management Agency Appeal Board Region 1 U.S. Nuclear Regulatory Commission J.W. McCormack Post Of fice &

Washington, D.C. 10555 Courthouse Building, Room 442 Boston, MA 02109 Georgo Iverson, Director Alan S. Rosenthal N.H. Office of Emergency Management Atomic Safety & Licensing State House Office Park South Appeal Board 107 Pleasant Street U.S. Nuclear Regulatory Commission Concord, NH 03301 Washington, DC 10555 h.

Respectfully submitted, SCOTT HARSHBARGER -

ATTORNEY GENERAL u ~

lh Leslie Greer Assistant Attorney General Nuclear Safety Unit Department of the Attorney General 07e Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: February 25, 1991 3-

• Docketing and Service ** Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, M) 02110

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

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

Office of the General Counsel Augusta, ME 04333 11555 Rockville Pike, 15tl -

'cor 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 & Lisensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box Slo Manchaster, NH 03106 Jane Doughty Diane Curran, Esq.

Scacoast Anti-Pollution League 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. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Lcw Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq. Senator Or ctin J. Humphray 145 South Main Street U.S. Genate P.O. Box 38 hashington, 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 7f Capitol Street (Attn: Herb Boynton) Loncord, NH 03301

• • Hand delivery was made on February 4, 1991 by 10:00am

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