ML20151W558

Applicant Response to Cross Motion for Referral of Atty General for Commonwealth of Ma & New England Coalition on Nuclear Pollution.* Intervenors Cross Motion for Referral Should Be Denied.Certificate of Svc Encl

ML20151W558
Person / Time
Site:	Seabrook
Issue date:	08/17/1988
From:	Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#388-6946 OL, NUDOCS 8808250026
Download: ML20151W558 (7)

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UNITED STATES OF AMERICA NUCLEAR REGULA, TORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL

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(Seabrook Station, Units 1 and 2) ) (Off-site Emorgency

) Planning Issues)

I t APPLICANTS' RESPONSE TO "CROSS MOTION FOR REFERRAL" OF ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS AND NEW ENGLAND COALITION ON NUCf.FAR POLLUTION Applicants have moved for referral of this Board's rulings on contentions 1, 3, 4, and 6 of the Attorney General for the Commonwealth of Massachusetts ("Mass AG" or "MAG")

and have identified therein the two significant legal questionc of which interlocutory review is needed. Mass AG and New England Coalition on Nuclear Pollution ("NECNP")

(collectively "Intervenors") opposed Applicants' motion but appended un alternative "Cross Motion for Referral" which pgd a

would tack on a third issue for review.1 Although that issuo was addressed under the Board's ruling on MAG Contention 3, Applicants oppose its specific referral because by itself the issue does not merit interlocutory review.

Intervenors did not cite or address the Commission's standard for referral but instead simply voiced dissatisfaction with a part of this Board's Memorandum and Order. Intervenors did not articulate a single reason for i

referral of the issue they apparently wish to reargue. For their failure even to discuss the relevant standard, Intervenors' motion should be denied, g33 Consolidated Edison Co. of New York. Inc. (Indian Point Station, Units 1, 2 and 3), CLI-77-2, 5 NRC 13, 14 (1977) ("The moving party .

. . has the burden of proving that its motion should be granted.")

' Even assuming that Intervenors had filed a proper motion for referral, instead of what reads more like the argument 1'

accompanying a motion for reconsideration, it should be i denied. Intervenors' argument is speculative and does not have generic implications. Intervenors speculate that they will find the Seabrook Plan for Massachusetts Communities to j be objectively superior c) any ad hoc response, and in that 1 Inte rvenors ' "referral" motion is mislabeled since the ruling encompassing their issue was in Mass AG's favor

. and is not appealable by him.

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d event they may want to present some unspecified sort of evidence to show that government officials will nonetheless choose an inferior response. Prescinding from the merits of Intervenors' flat rejection of the Commission's rule, there is insufficient basis for the extraordinary relief of interlocutory review of Intervenors' speculation. C12 Metrocolitan Edison Co.. (Three Mile Island Nuclear Station, Unit 1), A LAB-7 91, 20 NRC 1579, 1583 (1984) ("determinations regarding what evidence should be admitted rarely, if ever, l have a pervasive or unusual effect on the structure of a proceeding so as to warrant our interlocutory intercession");

Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11, 15 (1983) ("the fact I that legal error may have occurred does not of itself justify interlocutory appellate review in the teeth of the long-standing articulated Commission policy generally disfavoring such review."),

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Conclusion For the foregoing reasons, Intervanora' cross motion for referral should be denied.

By their attorneys, Thom(s G'. Dlgnan, Jr.

George H. Lewald 4

Kathryn A. Selleck Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 j

(617) 423-6100 1

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. CERTIFICATE OF SERVICE I, Kathryn A. Selleck, . :

Applicants herein, hereby certify one ofthat theon attorneys August for 17,trie1(" ? .19 8 ,' ',r i p" ;

made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):

Administrative Judge Ivan W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmen ,

Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger Diare Curran, Esquire Andrea C. Forster, Esquire j Atomic Safety and Licensing t Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 t Commission 2001 S Street, N.W.

East West Towers Building Washington, DC 20009 -

4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee ,

U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 i

Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies) U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.

4350 East West Higavay 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P. O. Box 516 l Commission Manchester, NH 03105 Washington, DC 20555 i

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Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire I Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O. Box 360 One Ashburton Place, 19th Fl.

Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, N; Portsmouth, NH 03801

• Senator Gordon . Hutaphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn: Tom Burack) 79 State Street Newburyport, MA 01950

• Senator Gordon J. Humphrey Mr. Peter J. Matthews One Eagle Square, Sitite 507 Mayor Cencord, NH 03301 City Hall (Attn: Herb Eoynton) Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833

, Joseph Flynn, Esquire Charles P. Graham, Esquire affice of Genaral Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 W!.anacunnet Road 35 Ple?sant Street Hampton, NH 03841 Concord, NH 03301

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L Mr. Ed Thomas Judith H. Miznar, Esquire FEMA, Region I 79 State Street, 2nd Floor 442 John W. McCormack Post Newburyport, MA 01950 Office and Court House Post Office Square Boston, MA 02109

Ashod N. Amirian, Esquire Leonard Kopelman, Esquire 376 Main Street Kopelman & Paige, P.C.

Haverhill, MA 01J30 77 Franklin Street Boston, MA 02110

'4 I Ka'tWri A.

JL Selleck

( *= Ordinary II. S . First Class Mail) 1

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